SUPERSTITION 


FORCE 


ESSAYS  ON 


THE  WAGER  OF  LAW-THE  WAGER  OF  BATTLE- 
THE  ORDEAL-TORTURE. 


BY 
HENRY    C.   LEA. 


"Antiquities,  or  remnants  of  history,  are,  as  was  said,  '  tanquam  tabula  naufragii,' 
when  industrious  persons,  by  an  exact  and  scrupulous  diligence  and  observation,  out  of 
monuments,  names,  words,  proverbs,  traditions,  private  records  and  evidences,  passages 
of  books  that  concern  not  story,  and  the  like,  do  save  and  recover  somewhat  from  the 
deluge  of  time." 

Bacon,  Advancement  of  Learning,  Book  II, 


PHILADELPHIA: 

HENRY     C.    LEA 

1806. 


H  V  84-?7 


7£l 


Entered  according  to  the  Act  of  Congress,  in  the  year  1866,  by 

HENRY    C.    LEA, 

in  the  Office  of  the  Clerk  of  the  District  Court  of  the  Unite  1  States  in  and 
for  the  Eastern  District  of  the  State  of  Pennsylvania. 

HENRY  MORSE  STETWMf 


PHILADELPHIA : 
CQLJ-mS,  PRINTER,  705  JAYNE  STREET 


PREFACE. 


The  aim  of  the  following  essays  is  simply  to  group 
together  facts  so  that,  with  a  slender  thread  of  com- 
mentary, they  may  present  certain  phases  of  human 
society  and  progress  which  are  not  without  interest  for 
the  student  of  history  and  of  man.  The  authorities 
for  all  statements  have  been  scrupulously  cited,  and  it 
will  be  seen  that,  for  the  most  part,  they  are  drawn 
from  the  original  sources.  The  conclusions  the  reader 
can  verify  for  himself. 

In  a  more  condensed  form,  the  first  three  essays 
have  already  appeared  in  the  "North  American  Ke- 
view." 

Philadelphia,  July,  18GG. 


?  Ji  2 


I. 

THE  WAGER  OF  LAW. 


Apart  from  the  exact  sciences,  there  is  no  subject  which 
more  fully  repays  the  student  than  the  history  of  juris- 
prudence. To  the  reflecting  mind  few  popular  quotations 
are  so  essentially  false,  or  reveal  so  narrow  a  view  of  life 
as  the  often  cited  lines — 

"How  small,  of  all  that  human  hearts  endure, 
That  part  which  kings  or  laws  can  cause  or  cure  !" 

Since  the  origin  of  society,  each  unit  of  our  race  has 
struggled  on  in  his  allotted  path,  through  jo}rs  and  griefs, 
fashioned,  for  the  most  part,  by  the  invisible  network  of 
habits,  customs,  and  statutes,  which  surround  him  on  every 
side,  and  silently  shape  his  daily  actions.  Thus  the  history 
of  jurisprudence  becomes  the  history  of  the  life  of  man,  and 
the  society  of  distant  ages  is  more  distinctly  presented  to 
us  in  the  crabbed  sentences  of  codes  than  in  the  flowing 
rhetoric  of  the  historian.  Slender  as  may  be  the  respect 
with  which  we  of  to-day  sometimes  regard  rotatory  assem- 
blymen and  partisan  judges,  still  are  they  none  the  less 
noteworthy  personages.  The  parts  are  more  important 
than  the  actors,  and  centuries  hence  it  will  be  to  our  statute 
books  and  reports  that  the  curious  student  will  resort  to 
find  out  what  manner  of  men  were  the  restless  and  ener- 
getic race  which  found  self-government  a  harder  task  than 
the  founding  of  a  gigantic  empire. 

The  law-giver  and  the  law-dispenser  are  the  custodians 
of  all  that  we  hold  dear  on  earth.  Save  the  minister  of 
God,  what  human  being  can  have  interests  so  vital  confided 
2 


14  T  i\  E     WAG  Ell     OF     LAW. 

to  him,  or  can  exercise  so  momentous  an  influence  over  his 
fellow-men  ?  Cyrus  and  Alexander,  Tamerlane  and  Gen- 
ghis Khan  have  passed  away ;  their  names  alone  remain,  and 
the  world  is  as  though  they  had  never  been.  The  laws  of 
Confucius  and  Manu,  of  Mahomet  and  Justinian  still  live, 
and  will  sway  the  destinies  of  races  in  the  future  as  they 
have  in  the  almost  illimitable  past.  When  Arogast  and 
Bodogast,  Salogast  and  Windagast  assembled  to  draft  into 
shape  the  rude  customs  of  a  roving  and  predatory  tribe, 
they  little  thought  that  the  Salique  law  wThich  they  founded 
wrould  leave  its  impress  for  centuries  on  nations  to  which 
their  very  names  would  be  unknown.  Codes  thus  endowed 
with  vitality  must  necessarily  reflect  the  nature  and  the 
usages  of  the  races  for  which  they  were  compiled.  The 
man  and  his  law  exercise  a  mutual  reaction,  and  in  the 
one  we  see  an  image  of  the  other.  The  stern,  resolute 
brevity  of  the  law  of  the  Twelve  Tables  furnishes  the  best 
corrective  commentary  on  the  easy  credulity  of  Livy ;  in 
the  code  of  Moses,  the  Hebrew  character  and  polity  are 
portrayed  in  the  strongest  light  and  shade  ;  and,  in  general, 
the  historian,  who  wishes  to  obtain  or  to  convey  a  definite 
impression  of  a  nation  or  a  period,  must  have  recourse  to 
the  laws  which  regulated  the  daily  life  of  the  people,  and 
which. epitomize  their  actions  and  modes  of  thought.  It 
may  be  therefore  not  uninteresting  to  trace,  through  the 
dim  light  of  antiquity,  some  rude  outlines  of  customs  which 
were  the  precursors  of  European  civilization. 

In  the  German  forests,  Tacitus  dopicts  an  aggregation 
of  tribes  living  principally  on  the  spoils  of  war  or  of  the 
chase,  aided  by  the  imperfect  agriculture  of  their  slaves. 
Personal  independence  is  carried  to  its  extreme.  The 
authority  of  the  ruler,  except  when  commanding  a  military 
expedition,  is  almost  nominal  and  scarcely  extends  beyond 
his  immediate  attendants,  companions,  or  leudes.  Each 
petty  chief  is  under  the  control  of  the  assembly  of  his  sept, 


Til  I    A  N  0  I  BNT    G  BB  M  ANS.  15 

t<>  which  nil  the  freemen  gather  in  anna  and  decide,  with- 
out appeal  on  nil  common  Interests,  nearest  among  their 
privileges  is  the  righl  of  private  vengeance.    The  freeman 

Who  sustains  an  injury,  and  who  disdains  to  summon  his 
enemy  before  the  nuMum^  or  judicial  assembly  of  the  tribe, 
may  call  together  his  family  and  friends  and  exact  what 

satisfaction  he  can  with  sword  and  axe.  The  interminable 
warfare  of  hostile  families  is,  however,  in  most  cases 
averted  by  the  principle  of  compensation  for  injuries,  and 
every  crime  is  rated  at  its  appropriate  price,  or  wehrgild, 
payable  to  the  injured  party.1  As  the  relatives  are  bound 
to  aid  in  a  quarrel  settled  by  the  strong  hand,  so  are  they 
entitled  to  share  in  the  compensation,  if  peaceful  measures 
are  adopted.2  On  the  other  hand,  when  a  criminal's  poverty 
renders  him  unable  to  pay  the  tine,  his  kindred  are  held 
responsible  for  it,  as  they  are  also  forced  to  defend  him  in 
the  feud.3     In  its  relations  to  the  community,  each  family 

1  This  system  of  private  warfare  as  an  alternative  for  refusal  of  redress) 
is  expressively  condensed  in  an  Anglo-Saxon  proverb  quoted  approvingly  in 
the  laws  of  Edward  the  Confessor,  as  collected  by  William  the  Conqueror. 
— "  Bicge  spere  of  side  o£er  bere — quod  est  dicere,  lanceam  eine  de  latere 
aut  fer  earn." — LI.  Edwardi  c.  xii.    (Thorpe's  Ancient  Laws,  I.  4f>7.) 

"  In  Iceland  and  Norway,  it  was  not  until  about  1270  that  King  Haco,  in 
his  unsuccessful  effort  at  legislation,  decreed  that  the  blood-money  for  murder 
should  no  longer  be  divided  among  the  family  of  the  victim,  but  should  be 
all  paid  to  the  heir. — Jarnsida,  Mannhelge,  cap.  xxix.  Previously  to  this, 
when  the  next  of  kin  were  females,  and  thus  incompetent  to  prosecute  on  a 
charge  of  murder,  the  person  who  undertook  that  office  was  entitled  to  one- 
third  of  the  fine. — Gr;ig;'is,  Sect.  VIII.  cap.  lv. 

Ecclesiastical  ties  dissolved  those  of  the  family.  Thus,  among  the  Welsh 
of  the  tenth  century,  the  laws  of  Hoel  Dha  specify  that  the  clergy  shall  not 
be  counted  among  the  relatives,  either  as  payers  or  payees  in  cases  of  mur- 
der.— LI.  Eccles.  Hoeli  Dha,  cap.  viii. 

3  The  most  ancient  barbarian  code  that  has  reached  us — that  of  the  Feini, 
or  ancient  Irish,  in  a  fanciful  quadripartite  enumeration  of  the  principles  in 
force  in  levying  fines,  thus  alludes  to  the  responsibility  of  kindred  :  "  And 
because  there  are  four  things  for  which  it  is  levied  :  '  cin'  (one's  own  crime), 
and  '  tobhach'  (the  crime  of  a  near  kinsman) ,  '  saighi'  (the  crime  of  a  middle 
kinsman),  and  the  crime  of  a  kinsman  in  general." — Senchus  Mor,  I.  259. 
(Hancock's  edition,  Dublin,  1865.) 


16  THE    WAGER    OF    LAW. 

is  thus  a  unit  for  aggression  or  defence,  and  is  responsible 
for  the  character  and  actions  of  each  of  its  members.  This 
peculiarity  of  the  Teutonic  tribes  is  important,  as  it  ex- 
plains much  that  is  otherwise  singular  in  their  subsequent 
legislation,  leaving  its  traces  late  in  the  feudal  and  custom- 
ary law. 

The  oldest  known  text  of  the  Salique  law  is  but  little  if 
at  all  posterior  to  the  conversion  of  Clovis  to  Christianity. 
Four  hundred  years  have  therefore  intervened  between  the 
vigorous  sketches  of  Tacitus  and  the  less  picturesque  but 
more  detailed  view  afforded  by  the  code.  The  changes 
produced  by  the  interval  are  wonderfully  small.  A  some- 
what more  complex  state  of  society  has  arisen ;  government 
has  assumed  some  power  and  stability,  under  the  iron 
energy  and  resistless  craft  of  Clovis ;  fixed  propert}^  and 
possessions  have  acquired  importance  ;  fields  and  orchards, 
gardens  and  bee-hives,  mills  and  boats  appear  as  objects  of 
value  alongside  of  the  herds  and  weapons  which  were  their 
only  wealth  when  the  Roman  historian  condescended  to 
describe  his  barbarous  neighbors.  Yet  the  same  funda- 
mental principles  are  at  work,  and  the  relations  of  the  in- 
dividual to  his  fellows  remain  unchanged.  The  right  of 
private  warfare  still  exists.     The  state  is  still  an  aggregate 

The  most  complete  arrangement  that  I  have  met  with  for  carrying  out 
this  principle  occurs  in  the  Icelandic  legislation  of  the  twelfth  century, 
where  the  fines  provided  diminish  gradually,  as  far  as  the  relations  in  the 
fifth  degree  on  both  sides,  each  grade  of  the  criminal's  family  paying  its  rate 
to  the  corresponding  grade  of  the  sufferer's  kindred. — Grag&s,  Sect.  IV. 
cap.  cxiv. 

In  Denmark,  Eric  VII.,  in  1269,  relieved  the  kindred  of  a  murderer  from 
being  compelled  to  share  the  fine,  although  the  relatives  of  the  victim  con- 
tinued to  divide  the  wehrgild. — Constit.  Eric.  ann.  1269,  §  vii.  (Ludewig, 
Iteliq.  MSS.  T.  XII.  p.  204.)  But,  even  as  late  as  the  fourteenth  century, 
the  statutes  of  the  city  of  Lille  gave  the  malefactor  a  right  to  collect  from 
his  relatives  a  portion  of  the  wehrgild  which  he  had  incurred  ;  and  elaborate 
tables  were  drawn  up,  showing  the  amount  payable  by  each  relation  in  pro- 
portion to  his  grade  of  kinship,  even  to  third  cousins. — Roisin,  Franchises 
&c.  de  la  ville  de  Lille,  pp.  106-7. 


VARIETIES    OP    EVIDENCE.  IT 

of  families,  rallying  together  for  the  field  and  for  the  court, 

and  ready  tO  Bnstain  any  of  their  members  by  force  of  arms, 

or  by  the  procedures  of  justice.  The  forms  of  these  pro- 
cedures are  revealed  to  us,  and  we  learn  what  efforts  were 
made  to  soften  the  native  ferocity  of  the  Frank,  and  the 
modes  by  which  he  is  tempted  to  forego  the  privilege  of 
revenge.  Every  offence  against  persons  or  property  is  rated 
at  its  appropriate  price)  and  a  complete  tariff  of  crime  is 
drawn  up.  from  the  theft  of  a  sucking-pig  to  the  armed  occu- 
pat  [on  of  an  estate,  and  from  a  wound  of  the  little  finger  to 
the  most  atrocious  of  parricides  ;  nor  can  the  offender  refuse 
to  appear  when  duly  summoned  before  the  mall  am,  or  claim 
the  right  of  armed  defence  if  the  injured  party  has  recourse 
to  peaceable  proceedings. 

But,  between  the  commission  of  an  offence  and  its  proof 
in  a  court  of  justice,  there  lies  a  wide  field  for  the  exercise 
or  perversion  of  human  ingenuity.  The  subject  of  evidence 
is  one  which  has  taxed  man's  powers  of  reasoning  to  the 
utmost,  and  the  subtle  distinctions  of  the  Roman  law,  with 
its  probatio,  praesamptio  juris,  praesumptio  juris  tantum, 
the  endless  refinement  of  the  glossators,  rating  eyidence  in 
its  different  grades,  as  probatio  optima,  evidentissima,  aper- 
fis.<iut(/,  legitiTna,  sufficient,  indubilata,  dilucida,  liquida, 
<ri<h>ns,perspicua,  and  semiplena,  and  the  complicated  rules 
which  bewilder  the  student  of  the  common  law,  all  alike 
show  the  importance  of  the  subject,  and  its  supreme  diffi- 
culty. The  semi-barbarous  Frank,  impatient  of  such  ex- 
penditure of  logic,  arrived  at  results  by  a  shorter  and  more 
direct  process. 

Some  writers  have  assumed  that  the  unsupported  oath 
of  the  accused  was  originally  sufficient  to  clear  him  of  a 
charge,  and  they  present  an  attractive  fancy  sketch  of  the 
heroic  age,  when  a  lie  is  cowardice,  and  the  fierce  warrior 
disdains  to  shrink  from  the  consequences  of  his  act.  All 
this  is  pure  invention,  for  which  proof  may  be  vainly  sought 
in  any  of  the  unadulterated  "  Leges  Barbarorum."    It  was 

2* 


18  THE    WAGER    OF    LAW. 

not,  indeed,  until  long  after  they  had  declined  from  the 
rude  virtue  of  their  native  forests,  that  an  unsupported 
oath  was  receivable  as  evidence,  and  its  introduction  may- 
be traced  to  the  influence  of  the  Roman  law,  in  which  its 
importance  was  overwhelming.1  The  Wisigoths,  who 
adopted  the  Roman  jurisprudence  as  their  own,  were  the 
only  race  of  barbarians  who  permitted  the  accused,  in  the 
absence  of  definite  testimony,  to  escape  on  his  single  oath,8 
and  this  exception  only  tends  to  prove  the  rule.  So  great 
was  the  abhorrence  of  the  other  races  for  practices  of  this 
kind,  that  at  the  council  of  Yalence,  in  855,  the  Wisigothic 
custom  was  denounced  in  the  strongest  terms  as  an  incen- 
tive to  perjury.3  It  was  not  until  long  after  the  primitive 
customs  of  the  wild  tribes  had  become  essentially  modified 
by  contact  with  the  remains  of  Roman  civilization,  that 
such  procedures  were  regarded  as  admissible ;  and,  indeed, 
it  required  the  revival. of  the  study  of  the  civil  law  in  the 
twelfth  century  to  give  the  practice  a  position  entitled  to 
respect.* 

1  The  oath  may  be  regarded  as  the  foundation  of  Roman  legal  procedure. 
"  Dato  jurejurando  non  aliud  quseritur,  quam  an  juratum  sit;  remissa 
qusestione  an  debeatur  ;  quasi  satis  probatum  sit  jurejurando."  L.  5,  §  2,  D. 
xu.  ii.  The  jusjurandum  uecessarium  could  always  be  administered  by 
the  judge  in  cases  of  deficient  evidence,  and  the  jusjurandum  injure  prof- 
fered by  the  plaintiff  to  the  defendant  was  conclusive  :  "  Manifestae  turpitu- 
dinis  et  confessionis  est  nolle  nee  jurare  nee  jusjurandum  referre."  Ibid. 
1.  38. 

2  LI.  Wisigoth.  Lib.  n.  Tit.  ii.  c.  5. 

3  Concil.  Valent.  ann.  855,  c.  xi.  Impia  et  Deo  inimica  et  Christiana* 
religioni  nimis  contraria,  lex  iniquissima. 

4  Thus  Alfonso  the  Wise  endeavored  to  introduce  into  Spain  the  mutual 
challenging  of  the  parties  involved  in  the  Roman  jusjurandum  in  jure,  by 
his  jura  dejuicio.  (Las  Siete  Partidas,  P.  in.  Tit.  xi.  1.  2.)  Oddly  enough, 
the  same  procedure  is  found  incorporated  in  the  municipal  law  of  Rheims  in 
the  fourteenth  century,  probably  introduced  by  some  over-zealous  civilian  ; 
"Si  alicui  deferatur  jusjurandum,  necesse  habet  jurare  vel  referre  jusju- 
randum, et  hoc  super  quovis  debito,  vel  inter  quasvis  personas."— Lib. 
Pract.  de  Consuetud.  Remens,  §  15  (Archives  Legislat.  de  Reims,  P.  I.  p.  37). 
By  this  time,  however,  the  oaths  of  parties  had  assumed  great  importance. 


CLASS    PB  l  V  I  L  IG  E8.  T.) 

It  is  true  tliMt  occasionally,  in  the  early  legislation  of  the 

barbarians,  an  Instance  occurs  in  which  certain  privileges 
in  this  respect  are  accorded  to  some  classes  in  the  commu- 
nity, but  these  are  special  immunities  bestowed  on  rank, 
Mid  are  therefore  also  exceptions,  which  <;•<)  tO  prove  the 
universality  of  the  rule.    Thus  in  one  of  the  most  primitive 

In  the  legislation  of  St.  Louis,  they  occupy  a  position  which  was  a  direct 
incentive  to  perjury.  Thus  he  provides  for  the  hanging  of  the  owner  of  a 
beast  which  had  killed  a  man,  if  he  was  foolish  enough  not  to  swear  that  he 
was  ignorant  of  its  being  vicious.  "Et  si  il  estoit  si  fox  que  il  deist  que  il 
least  la  teche  de  la  beste,  il  en  seroit  pendus  pour  la  recoignoissance." — 
1-Jt;ililissements,  Liv.  i.  chap.  exxi. 

In  certain  local  codes,  the  purgatorial  power  of  the  oath  was  carried  to 
the  most  absurd  extent.  Thus,  in  the  thirteenth  century,  the  municipal  law 
of  the  Saxons  enabled  the  accused  in  certain  cases  to  clear  himself,  however 
notorious  the  facts  of  the  case,  and  no  evidence  was  admitted  to  disprove  his 
position.  "Si  quis  aliquidagit  extra  judicium,  et  hoc  maxime  estnotorium, 
id  negare  possit,  praestito  juramento,  nee  admittantur  testes  contra  eum  ; 
hoc  juris  est."  (Jur.  Provin.  Saxon.  Lib.  i.  Art.  15,  18.)  This  irrational 
abuse  was  long  in  vogue,  and  was  denounced  by  the  Council  of  Basel  in  the 
fifteenth  century.  (Schilter.  Thesaur.  II.  291.)  It  only  prevailed  in  the 
North  of  Germany ;  the  Jus  Provin.  Alaman.  (cap.  ccclxxxi.  §  3),  which 
regulated  Southern  Germany,  alludes  to  it  as  one  of  the  distinguishing  fea- 
tures of  the  Saxon  code. 

So,  also,  at  the  same  period  a  special  privilege  was  claimed  by  the  inhabi- 
tants of  Franconia,  in  virtue  of  which  a  murderer  was  allowed  to  rebut  with 
his  single  oath  all  testimony  as  to  his  guilt,  unless  he  chanced  to  be  caught 
with  the  red  hand.  "Franconia?  cives  hoc  juris  habent,  quod  si  aliquem 
occidunt,  nisi  in  ipso  facto  deprehendantur,  purgare  se  possunt  juramento, 
si  asserere  volunt  per  illud  se  esse  innocentes." — Jur.  Provin.  Alaman.  cap. 
cvi.  §  7. 

A  charter  granted  to  the  commune  of  Lorris,  in  1155,  by  Louis-le-Jeune, 
gives  to  the  burghers  the  privilege  of  rebutting  by  oath,  without  conjurators, 
an  accusation  unsupported  by  testimony. — "  Et  si  aliquis  hominum  de  Lor- 
riaco  accusatus  de  aliquo  fuerit,  et  teste  comprobari  non  poterit,  contra  pro- 
bationem  impetentis,  per  solam  manum  suam  se  disculpabit." — Chart. 
Ludovic.  junior,  ann.  1155,  cap.  xxxii.  (Isambert,  Anciennes  Lois  Fran- 
caises  I.  157.)  And,  in  comparatively  modern  times,  in  Germany,  the  same 
rule  was  followed.  "Juramento  rei,  quod  purgationis  vocatur,  sa?pe  etiam 
innocentia,  utpote  qua)  in  anima  constitit,  probatur  et  indicia  diluuntur;" 
and  this  oath  was  administered  when  the  evidence  was  insufficient  to  justify 
torture.  (Zangeri  Tract,  de  Qu»stionibus  cap.  iii.  No.  46.)  In  1592,  Zanger 
wrote  an  elaborate  essay  to  prove  the  evils  of  the  custom. 


20  THE    WAGER    OF    LAW. 

of  the  Anglo-Saxon  codes,  which  dates  from  the  seventh 
century,  the  king  and  the  bishop  are-  permitted  to  rebut 
an  accusation  with  their  simple  asseveration,  and  the  thane 
and  the  mass-priest  with  a  simple  oath,  while  the  great 
body  both  of  clerks  and  laymen  are  forced  to  clear  them- 
selves by  undergoing  the  regular  form  of  canonical  com- 
purgation which  will  be  hereafter  described.1  These  in- 
stances of  class  privileges  are  too  numerous  throughout 
the  whole  period  of  the  dark  ages  to  afford  any  basis  for 
general  deductions.3 

So  far,  indeed,  were  the  barbarians  from  confiding  in  the 
integrity  of  their  fellows  that,  as  they  emerge  into  the  light 
of  histoiy,  their  earliest  records  show  how  eagerly  they 
endeavored  to  obtain  some  additional  guarantee  for  the 
oaths  of  litigants.  What  these  guarantees  were  during 
the  prevalence  of  paganism  we  can  only  guess.  After  their 
conversion  to  Christianity,  as  soon  as  written  documents 
afford  us  the  means  of  tracing  their  customs,  we  find  many 
expedients  adopted.  As  the  practice  of  invoking  objects 
of  affection  or  veneration  in  witness  of  an  oath  has  been 
common  to  mankind  in  all  ages,3  so  the  forms  of  religion 

1  Laws  of  Wihtrsed,  cap.  16-21.     Corap.  LI.  Henrici  I.  Tit.  lxiv.  $  8. 

3  Thus  by  the  law  of  southern  Germany  in  the  thirteenth  century,  the 
unsupported  oath  of  the  claimant  was  sufficient  if  he  was  a  personage  of  sub- 
stance and  repute,  while  if  otherwise,  he  was  obliged  to  provide  two  conju- 
rators.  (Jur.  Provin.  Alaman.  cap.  ccxliv.  §§  7,  8.)  So  in  Spain,  until  the 
middle  of  the  fourteenth  century,  the  fijodalgo  or  noble  could  rebut  a  claim 
in  civil  cases  by  taking  three  solemn  oaths,  in  which  he  invoked  the  ven- 
geance of  God  in  this  world  and  the  next. — "  Nuestro  Seiior  Dios,  a  quien  lo 
jurades,  vos  lo  demande  en  estro  mundo  al  cuerpo,  e  en  il  otro  al  animo." 
(Fuero  Viejo,  Lib.  m.  Tit.  ii.) 

3  Thus,  in  the  Roman  law,  oaths  were  frequently  taken  on  the  head  of  the 
litigant,  or  on  those  of  his  children.  (LI.  3,  4,  D.  xn.  ii.)  The  code  of 
Manu,  which  regards  oaths  as  a  satisfactory  mode  of  proof,  endeavors  to 
secure  their  veracity  by  selecting  for  invocation  those  objects  most  likely  to 
impress  the  different  castes  into  which  society  was  divided. 

"And  in  cases  where  there  is  no  testimony,  and  the  judge  cannot  decide 
upon  which  side  lies  the  truth,  he  can  determine  it  fully  by  administering 
the  oath. 


MULTIPLE    oaths.  21 

were  speedily  culled  in  to  lend  Banctity  to  the  imprecation, 
by  ingenious  devices  which  were  thought  to  give  additional 
solemnity  to  the  awful  ceremony.  In  the  middle  of  the 
sixth  century,  Pope  Pelagius  I.  did  not  disdain  to  absolve 
himself  from  the  charge  of  having  been  concerned  in  the 
troubles  which  drove  his  predecessor  Vigilius  into  exile,  by 
taking  :i  disculpatory  oath  in  the  pulpit,  holding  over  his 
head  a  crucifix  and  the  Gospels.1  About  the  same  period. 
When  the  holy  Gregory  of  Tours  was  accused  of  reproach  In  1 
words  truly  spoken  of  the  infamous  Fredegonda,  a  council 
of  bishops  decided  that  he  should  clear  himself  of  the  charge 
by  oaths  on  three  altars,  after  celebrating  mass  on  each, 
which  he  duly  performed,  doubtless  more  to  his  corporeal 
than  his  spiritual  benefit.2  This  plan  of  reduplicating  oaths 
on  different  altars  was  an  established  practice  among  the 
Anglo-Saxons,  who,  in  certain  cases,  allowed  the  plaintiff 
to  substantiate  his  assertion  by  swearing  in  four  churches, 
while  the  defendant  could  rebut  the  charge  by  taking  an 
oath  of  negation  in  twelve.3  Seven  altars  are  similarly 
specified  in  the  Welsh  laws  of  Hoel  Dha.4 

"  Oaths  were  sworn  by  the  seven  great  Richis,  and  by  the  gods,  to  make 
doubtful  things  manifest,  and  even  Vasichtha  sware  an  oath  before  the 
king  Soudfim(\,  son  of  Piyavana,  when  Viswamitra  accused  him  of  eating  a 
hundred  children. 

,;Let  not  the  wise  man  take  an  oath  in  vain,  even  for  things  of  little 
weight ;  for  he  who  takes  an  oath  in  vain  is  lost  in  this  world  and  the  next. 

"  Let  the  judge  swear  the  Brahmin  by  his  truth;  the  Kchatriya  by  his 
horses,  his  elephants,  or  his  arms  ;  the  Vaisya  by  his  cows,  his  corn,  and  his 
gold;  the  Soudra  by  all  crimes."— Book  TCI.  v.  109-113.  (After  Delong- 
champs'  translation.) 

A  curious  exception  to  this  general  principle  is  found  in  the  legislation  of 
the  ancient  Egyptians,  where  the  laws  of  Bocchoris  received  as  conclusive 
the  simple  oath  of  a  debtor  denying  his  indebtedness,  in  cases  where  there 
were  no  writings. — Diod.  Sic.  L.  I.  cap.  lxxix. 

1  Anastas.  Biblioth.  No.  lxii. 

"  Gregor.  Turon.  Hist.  Lib.  v.  cap.  xlix.  Gregory  complains  that  this  was 
contrary  to  the  canons,  of  which  more  hereafter. 

3  Dooms  of  Alfred,  cap.  33. 

4  LI.  Hoeli  Dha  cap.  2C.  According  to  the  Fleta,  as  late  as  the  thirteenth 
century,  a  etutom  was  current  among  merchants,  of  proving  the  payment  of 


22  THE    WAGER    OF    LAW. 

The  intense  veneration  with  which  relics  were  regarded, 
however,  caused  them  to  be  generally  adopted  as  the  most 
effective  means  of  adding  security  to  oaths,  and  so  little 
respect  was  felt  for  the  simple  oath  that  ere  long  the  ad- 
juncts came  to  be  looked  upon  as  the  essential  feature,  and 
the  imprecation  itself  to  be  divested  of  binding  force  with- 
out them.  Thus,  in  680,  when  Ebroin,  mayor  of  the  palace 
of  Burgundy,  had  defeated  Martin,  Duke  of  Austrasia,  and 
desired  to  entice  him  from  the  stronghold  of  Laon,  in 
which  he  had  taken  refuge,  two  bishops  were  sent  to  him 
bearing  the  royal  reliquaries,  on  which  they  swore  that  his 
life  should  be  safe.  Ebroin,  however,  had  astutely  removed 
the  holy  remains  from  their  cases  in  advance,  and  when  he 
thus  got  his  enemy  in  his  power,  he  held  it  but  a  venial 
indiscretion  to  expose  Martin  to  a  shameful  death.1  How 
thoroughly  this  was  in  accordance  with  the  ideas  of  the 
age  is  shown  by  the  incorporation,  in  the  canons  of  the 
church,  of  the  doctrine  that  an  oath  was  to  be  estimated 
by  its  externals  and  not  by  itself.  Contemporary  with 
Ebroin  was  Theodore,  Archbishop  of  Canterbury,  whose 
Penitential  is  the  oldest  that  has  reached  us,  and  this  vene- 
rable code  of  morality  assumes  that  a  perjury  committed  on 
a  consecrated  cross  requires,  for  absolution,  three  times  the 
penance  necessary  in  cases  where  the  oath  had  been  taken  on 
an  unconsecrated  one,  while,  if  the  ministration  of  a  priest 
had  not  been  emploj'ed,  the  oath  was  void,  and  no  penalty 
was  inflicted  for  its  violation.3     Two  centuries  later,  eccle- 

a  debt  by  swearing  in  nine  cburcbes.  (Thorpe,  Ancient  Laws,  I.  82.)  The 
Moslem  jurisprudence  has  a  somewhat  similar  provision  for  accusatorial 
oaths  in  the  Iesame,  by  which  a  murderer  can  be  convicted,  in  the  absence 
of  testimony  or  confession,  by  fifty  oaths  sworn  by  relatives  of  the  victim. 
Of  these  there  must  be  at  least  two,  and  the  fifty  oaths  are  divided  between 
them  in  proportion  to  their  respective  legal  shares  in  the  Die,  or  blood- 
money  for  the  murder. — (Du  Boys,  Droit  Criminel  des  Peuples  Modernes, 
I.  269.) 

1  Fredegarii  Chron.  cap.  xcvii. 

2  Qui  pejerat  in  manu  episcopi  aut  in  cruce  consecrata  III.  annos  poeni- 
teat.    Si  vero  in  cruce  non  consecrata,  annum  unum  poeniteat ;  si  autem 


ADJUNCTS    k  8  8  i:  N  I  I AL    TO    III    OATH.  29 

Biastical  authority  was  even  found  to  admit  that  a  powerful 
motive  might  extenuate  the  sin  of  perjury.  It*  committed 
voluntarily,  seven  years  of  penitence  were  enjoined  for  its 

absolution;    if  involuntarily,   sixteen   months,    while    if  to 

preserve  Lift  or  Limb,  the  offence  could  be  washed  out  with 

four  months.1  When  SUCh  doctrines  were  received  and 
acted  upon,  Ave  can  hardly  wonder  at  the  ingenious  device 
which  the  sensitive. charity  of  King  Robert  the  Pious  imi- 
tated from  the  duplicity  of  Ebroin,  to  save  the  souls  of 
his  friends.  He  provided  two  reliquaries  on  which  to  re- 
ceive their  oaths — one  for  his  magnates,  splendidly  fabri- 
cated of  crystal  and  gold,  but  entirely  empty,  the  other  for 
the  common  herd,  plainer  and  enshrining  a  bird's  egg. 
Knowing  in  advance  that  his  lieges  would  be  forsworn,  he 
thus  piously  sought  to  save  them  from  sin  in  spite  of 
themselves,  and  his  monkish  panegyrist  is  delighted  in 
recounting  this  holy  deceit.3 

in  raanu  hominis  laici  juraverit,  nihil  est. — Tbcodori  Cantuar.  Pocnit.  cap. 
xxiv.  §  2. 

1  Regino.  de  Eccles.  Discip.  Lib.  I.  cap.  ccc.  Notwithstanding  the 
shocking  laxity  of  these  doctrines,  it  is  not  to  be  supposed  that  the  true 
theory  of  the  oath  was  altogether  lost.  St.  Isidor  of  Seville,  who  was  but 
little  anterior  to  Theodore  of  Canterbury,  well  expresses  it :  "  Quacunque 
arte  verborum  quisque  juret,  Deus  tamen,  qui  conscientia)  testis  est,  ita  hoc 
accipit,  sicut  ille  qui  juratur  intelligit,"  and  this,  being  adopted  in  successive 
coHections  of  canons,  coexisted  with  the  above  as  a  maxim  of  ecclesiastical 
law  (Ivon.  Decret.  P.  xn.  c.  36. — Gratian.  caus.  xxii.  q.  2  can.  13.) 

3  Helgaldi  Vit.  Roberti  Regis. — The  profit  which  the  church  derived  from 
the  administering  of  oaths  on  relics  affords  an  easy  explanation  of  her  teach- 
ings, and  of  the  extension  of  such  practices  as  those  alluded  to  in  the  text. 
These  superstitions  and  their  resultant  advantages  are  well  illustrated  by 
the  example  of  the  holy  taper  of  Cardigan,  in  Wales.  A  miraculous  image 
of  the  Virgin  was  cast  ashore,  bearing  this  taper  burning  in  her  hand.  A 
church  was  built  for  it,  and  the  taper  "  contynued  styll  burnynge  the 
space  of  nyne  yeres,  without  wastynge,  untill  the  tyme  that  one  forsware 
himselfe  thereon,  so  then  it  extincted,  and  never  burned  after."  At  the 
suppression  of  the  house  under  Henry  VIII.,  the  prior,  Thomas  Hore,  testi- 
fied :  "  Item,  that  since  the  ceasynge  of  burnynge  of  the  sayd  taper,  it  was 
enclosed  and  taken  for  a  greate  relyque,  and  so  worshipped  and  kyssed  of 
pylgremes,  and  used  of  men  to  sweare  by  in  difficill  and  harde  matters, 


24  THE    WAGER    OP    LAW. 

It  may  readily  be  believed  that  the  wild  barbarian,  who 
was  clamoring  for  the  restoration  of  stolen  cattle,  or  the 
angry  relatives,  eager  to  share  the  wehrgild  of  some  mur- 
dered kinsman,  would  scarcely  submit  to  be  balked  of  their 
rights  at  the  cost  of  simple  perjury  on  the  part  of  the 
criminal.  While  their  Christianity  was  yet  new,  they  would 
not  attach  much  value  to  the  additional  security  afforded  by 
religious  ceremonies  or  superstitious  observances,  and,  as 
we  have  seen,  before  they  became  old  in  the  faith,  craft  and 
trickery  denied  the  most  sacred  solemnities.  It  was  there- 
fore natural  that  the}'  should  still  have  recourse  to  an  an- 
cestral custom,  which  had  arisen  from  the  structure  of  their 
societ}r,  and  which  derived  its  guarantee  from  the  solidarity 
of  families  alluded  to  above.  This  was  the  remarkable 
custom  which  was  subsequently  known  as  canonical  com- 
purgation, and  which  long  remained  a  part  of  English 
jurisprudence,  under  the  name  of  the  "Wager  of  Law.  The 
defendant,  when  denying  the  allegation  under  oath,  appeared 
surrounded  by  a  number  of  companions— -juratores,  conju- 
ratores,  sacramentales,  collaudantes,  compurgatores,  as  they 
were  variously  termed — who  swore,  not  to  their  know- 
ledge of  the  facts,  but  as  sharers  and  partakers  in  the  oath 
of  denial. 

This  curious  form  of  procedure  derives  importance  from 
the  fact  that  it  is  an  expression  of  the  character,  not  of  an 
isolated  sept,  but  of  nearly  all  the  races  that  have  moulded 
the  destinies  of  Europe.  The  Ostrogoths  in  Italy,  and 
the  Wisigoths  of  the  South  of  France  and  Spain  were  the 
only  nations  in  whose  codes  it  occupies  no  place,  and 
they,  as  has  already  been  remarked,  at  an  early  period 
yielded  themselves   completely  to   the    influence   of   the 

whereof  the  advauntage  admounted  to  greate  sommes  of  money  in  tymes 
passed,  payenge  yerely  to  the  same  XXti  nohles  for  a  pencion  unto  thabbott 
of  Chersey."  (Suppression  of  Monasteries,  p.  186.  Camden  Soc.  Pub.) 
The  Priory  of  Cardigan  was  dependent  upon  the  Abbey  of  Chertsey,  and 
the  sum  named  was  sippnrently  the  abbot's  share  of  the  annual  spoils. 


A.NTIQ1    !  r  v    01    COMPURGATION.  25 

Roman  oiyilization.  On  the  other  hand,  the  Salians,  the 
Ripuarians,  the  A.lamanni,  the  Baioarians,  the  Lombards, 
the  Frisians, the  Saxons,  tin-  Angli  and  Werini,  the  Anglo- 
Saxons,  and  the  Welsh,  races  springing  from  origins 
widely  diverse,  nil  gave  i<>  this  form  of  purgation  a  promi- 
nent position  in  their  jurisprudence,  and  it  may  be  said 
t<>  have  reigned  from  Southern  Italy  to  Scotland. 

That  the  custom  was  anterior  to  the  settlement  of  the 
barbarians  in  the  Roman  provinces  is  susceptible  of  rea- 
sonable proof.  The  earliest  text  of  the  Salique  law  pre- 
sents us  with  the  usages  of  the  Franks  unaltered  by  any 
allusions  to  Christianity,  and  it  may  therefore  be  presumed 
to  date  from  a  period  not  later  than  the  conversion  of 
Clovis.  In  this  primaeval  code  there  are  directions  for 
the  employment  of  conjurators,  which  show  that  the  pro- 
cedure was  a  settled  and  established  form  at  that  period.1 
So  in  the  Frisian  law,  which,  although  compiled  in  the 
eighth  century,  still  reveals  pagan  customs  and  the  primi- 
tive condition  of  societ}^,  the  practice  of  compurgation 
evidently  forms  the  basis  of  judicial  proceedings.  The 
other  codes  have  only  reached  us  in  revisions  subsequent 
to  the  conversion  of  the  several  tribes,  and  their  authority 

1  First  Text  of  Pardessus,  Tit.  xxxix.  §  2,  and  Tit.  xlii.  §  5  (Loi  Saline, 
Paris,  1S43,  pp.  21,  23).  It  is  somewhat  singular  that  in  the  subsequent  re- 
censions of  the  code  the  provision  is  omitted  in  these  passages.  One  cannot 
without  hesitation  accuse  Montesquieu  of  ignorance,  and  yet  it  is  difficult 
under  any  other  supposition  to  account  for  his  assertion  that  canonical 
compurgation  was  unknown  to  the  Salique  law  (Esprit  des  Loix,  Lib. 
xxviii.  chap.  13),  an  assumption  from  which  he  proceeds  to  draw  the  most  ex- 
tensive deductions.  Although  it  is  referred  to  but  twice  in  the  Lex  Emen- 
data  of  Charlemagne  (Tit.  1.,  lv.),  still  those  references  are  of  a  nature  to 
show  that  it  was  habitually  practised  ;  while  the  earlier  texts,  of  which  that 
of  Herold  and  the  Wolfenbuttel  MS.  were  accessible  to  him  in  the  well- 
known  edition  of  Eckhardt,  contain  precise  directions  for  its  use,  designating 
the  conjurator  under  the  title  of  Tliulapta.  Even  without  these,  however, 
the  Merovingian  and  Carlovingian  Capitularies,  the  Formulary  of  Marculfus, 
and  the  history  of  Gregory  of  Tours  should  have  preserved  him  from  so  gross 
an  error. 
3 


26  THE    WAGER    OF     LAW. 

on  this  point  is,  therefore,  not  so  absolute.  The  univer- 
sality of  the  practice,  however,  at  a  period  when  intercom- 
munication was  rare,  and  ancestral  habits  not  easily 
infringed  upon,  is  a  strong  corroborative  evidence  that  its 
origin  with  all  is  traceable  to  prehistoric  times.1 

The  church,  with  the  tact  which  distinguished  her  deal- 
ings with  her  new  converts,  was  not  long  in  adopting  a 
system  which  was  admirably  suited  for  her  defence  in  an 
age  of  brute  force.  As  holy  orders  sundered  all  other  ties, 
and  as  the  church  was  regarded  as  one  vast  family,  eccle- 
siastics speedily  arrogated  to  themselves  and  obtained  the 
privilege  of  having  men  of  their  own  class  as  compurgators, 
and,  thus  fortified  for  mutual  support,  they  were  enabled 
to  resist  the  oppressors  who  invaded  their  rights  on  every 
hand.  How  completely  it  became  part  and  parcel  of  eccle- 
siastical law  is  shown  by  Gregory  II.  in  the  earl}'  part  of  the 
eighth  century,  when  he  ordered  its  employment  in  cases 
where  husband  and  wife  desired  to  deny  the  consummation 
of  marriage.2  At  last  the  final  seal  of  approbation  was 
bestowed  when  Charlemagne,  in  the  year  800,  went  to  Rome 
for  the  purpose  of  trying  Pope  Leo  III.  on  a  grave  charge, 

1  Among  the  Anglo-Saxons,  for  instance,  the  earliest  written  code  is  the 
Dooms  of  iEthelbirht  (Bedae  Hist.  Angl.  II.  5),  compiled  shortly  after  his 
conversion  by  Augustine  in  597.  It  is  scarcely  more  than  a  list  of  fines  and 
punishments,  containing  no  instructions  for  judicial  procedures,  and  there- 
fore its  silence  on  the  subject  of  compurgation  affords  no  indication  on  the 
subject.  The  next  in  point  of  date,  however,  the  Dooms  of  Hlothhsere  and 
Eadric,  promulgated  about  A.  D.  680,  alludes  to  conjurators  under  the  name 
of  cewdas  (cap.  2,  4,  5,  <fcc),  after  which  they  form  a  prominent  feature  in 
Anglo-Saxon  jurisprudence. 

lb  is  somewhat  remarkable  that  the  custom  should  not  have  been  indige- 
nous among  the  inhabitants  of  Iceland,  when  it  was  universal  among  their 
parent  Scandinavian  races.  Their  earliest  code,  the  Gragds,  which  dates 
from  the  twelfth  century,  contains  no  allusion  to  it  (Schlegel,  Comment,  ad 
Griigas  p.  Ixxxiv.).  It  was,  however,  introduced  in  the  Jamsida,  a  code 
which  Haco  of  Norway  endeavored,  with  indifferent  success,  to  impose  upon 
them  towards  the  close  df  the  thirteenth  century. 

1  Uterque  eorum  septima  manu  propinquorum,  tactis  sacrosanctis  reliquiis, 
jurejurando  dicat  ut  nunquam,  etc. — Can.  Requisisti,  caus.  xxxiii.  q.  1. 


ADOPTED    BY    THE    C  HURT  ir.  27 

:iiid  in  thai  august  presence  the  Pontiff,  whom  no  witnesses 
dared  to  accuse,  cleared  himself  of  the  crimes  Imputed  to 
him  by  solemnly  taking  the  oath  of  denial  in  company  with 

twelve  priests  as  compurgators.1  Three  years  afterwards, 
the  Emperor  decreed  that,  In  all  doubtful  cases,  priests 

should  defend  themselves  with  three,  live,  or  seven  ecclesi- 
astical compurgators,  and  he  announced  that  this  de- 
cision had  been  reached  by  the  common  consent  of  Pope, 
patriarchs,  bishops,  and  all  the  faithful.3  It  is  true  that  a 
few  months  later,  on  being  shown  a  decretal  of  Gregory  II.3 

1  Eginhart.  Annal.  ann.  800. — The  monkish  chroniclers  have  endeavored 
to  conceal  the  fact  that  Leo  underwent  the  form  of  trial  like  a  common 
criminal,  but  the  evidence  is  indubitable.  Charlemagne  alludes  to  it  in  the 
Capitulum  Aquisgranense  ann.  803,  in  a  manner  which  admits  of  no  dispute. 

1  Consultu  domini  et  patris  nostri  Leonis  Apostolici  ceterorumque  Romamu 
ecclesiae  episcoporum  et  reliquorum  sacerdotum  sive  Orientalium  et  Qrx- 
corum  patriarcharum  et  multorum  sanctorum  episcoporum  et  sacerdotum, 
necnon  et  nostrorum  episcoporum  omnium  ceterorumque  sacerdotum  ac 
levitarum  auctoritate  et  consensu,  atque  reliquorum  fidelium  et  cunctorum 
consiliariorum  nostrorum  consultu. — Capit.  Aquisgran.  ann.  803,  cap.  vii. 

3  De  presbytero  vero  vel  quolibet  sacerdote  a  populo  accusato,  si  certe 
non  fuerint  testes,  qui  crimini  illato  approbent  veritatem,  jurejurando  erit 
in  medio,  et  ilium  testem  proferat  de  innocentiae  suae  veritate,  cui  nuda  et 
aperta  sunt  omnia,  sicque  maneat  in  proprio  gradu. — Bonifacii  Epist.  cxxvi. 

The  subject  of  the  oaths  of  priests  was  one  of  considerable  perplexity 
during  the  dark  ages.  Among  the  numerous  privileges  claimed  by  the  sacer- 
dotal body  was  exemption  from  the  necessity  of  swearing,  and  their  efforts 
to  this  end  date  from  an  early  period.  That  it  was  a  disputed  question  even 
in  the  time  of  St.  Augustine  is  shown  by  his  arguing  that  the  responsibility 
properly  attaches  to  him  who  requires  the  oath,  not  to  the  oath-taker  him- 
self. "Non  est  contra  Dei  praeceptum  juratio,  qua?  a  malo  est  non  jurantis 
sed  incredulitatis  ejus  a  quo  jurare  cogitur.  .  .  .  Quantum  ad  me  pertinet, 
juro,  sed  quantum  mihi  videtur,  magna  necessitate  compulsus. ' '  ( Apud  Ivon. 
Decret.  P.  XII.  c.  3,  8.)  In  456,  the  Emperor  Marcian  admitted  that  eccle- 
siastics were  forbidden  by  the  canons  to  swear — "quia  ecclesiasticis  regulis, 
et  canone  a  beatissimis  episcopis  antiquitus  instituto,  clerici  jurare  pro- 
hibentur."  (Const.  25  C.  i.  3.)  The  Rule  of  St.  Benedict  contained  a  clause 
"Non  jurare,  ne  forte  perjuret,"  on  which  his  commentator  Smaragdus,  in 
the  ninth  century,  observes  "non  est  contra  Dei  praeceptum  jurare,"  but  out 
of  abundant  caution  he  adds  "necesse  est  ergo  ut  nunquam  juret,  qui  per- 
jurare  timet."   (Comment,  in  Reg.  S.  Ben.  cap.  iv.  §  27.)    Even  Charlemagne 


28  THE    WAGER    OF    LAW. 

ordering  the  clergy  to  rebut  all  accusations  with  their 
single  oaths.,  he  modified  his  previous  command,  and  left. 

in  801  yielded  his  assent  to  the  rule,  and  forhade  the  clergy  from  taking 
formal  oaths — "ut  nullus  sacerdos  quicquam  cum  juramento  juret."  (Capit. 
ann.  801.) 

This,  however,  had  no  permanent  effect.  The  hishops  of  Neustria,  who 
in  858  claimed  exemption  from  taking  oaths  of  allegiance,  admitted  that 
judicial  oaths  could  properly  he  exacted  of  them.  (Cap.  Car.  Calvi  Tit.  xxvii. 
c.  15.)  As  the  line  of  demarcation  hetween  the  clergy  and  the  laity  grew 
wider  and  deeper,  the  effort  was  renewed,  and  the  oath  was  regarded  as  a 
degradation  to  those  engaged  in  the  sacred  ministry  of  the  altar.  "  Man  us 
enim  per  quam  Corpus  Christi  conficitur  juramento  polluetur?  Ahsit !" 
The  Emperor  Henry  II.,  whose  devotion  to  the  church  earned  for  him  the 
honors  of  canonization,  endeavored  to  reconcile  the  conflicting  demands  of 
piety  and  common  sense  by  releasing,  in  1020,  the  priesthood  from  the  neces- 
sity of  taking  oaths,  but  allowing  them  to  put  forward  substitutes,  and  thus 
to  take  the  oath  by  proxy.  "Quapropter  nos,  utriusque,  videlicet  divinae  et 
humange,  legis  intentione  servata,  decernimus  ut  non  episcopus,  non  abbas, 
non  presbyter,  non  cujuscunque  ordinis  clericus,  non  aliquis  monachus  vel 
sanctimonialis,  in  quacunque  controversia,  sivi  criminali  sive  civili,  jusju- 
randum  compellatur  qualibet  ratione  subire,  sed  suis  idoneis  advocatis  hoc 
ofiicium  liceat  delegare." — Constit.  Ariminens.  S.  Henrici.  (Migne's  Patro- 
togia,  T.  140,  p.  232.) 

Where  legislation  was  so  variable  and  conflicting,  it  is  not  easy  to  ascer- 
tain positive  results  ;  but  in  the  eleventh  century  it  would  seem  that  before 
lay  judges  ecclesiastics  summoned  as  witnesses  could  not  be  forced  to  the 
oath,  but  that  when  they  themselves  were  parties  it  could  be  administered, 
at  the  option  of  their  superior,  with  the  proviso  that  it  should  be  employed 
only  in  important  cases.  (Cf.  Ivon.  Panorm.  Lib.  v.  c.  9,  10,  11.)  Ivo  of 
Chartres,  whose  authority  as  a  canonisfwas  undoubted,  classes  the  prohibi- 
tion among  the  "prseceptiones  mobiles,"  explaining  that  a  necessary  oath  is 
no  sin,  but  that  he  who  can  avoid  swearing  is  in  less  danger  of  committing 
perjury  than  he  who  takes  an  oath.  ''Non  quod  malum  sit  in  contractibus 
humanis  ex  necessitate  jurare  ;  sed  quod  longius  sit  a  perjurio  qui  nunquam 
jurat,  quam  ille  qui  qualicunque  occasione  jurat."  (Prolog,  in  Decretum.) 
The  struggle  between  the  secular  and  ecclesiastical  authorities  on  this  subject 
is  well  exemplified  in  a  case  which  occurred  in  1269.  The  Archbishop  of 
Rheims  sued  a  burgher  of  Chaudardre.  When  each  party  had  to  take  the 
oath,  the  prelate  demanded  that  his  should  be  taken  by  his  attorney.  The 
defendant  demurred  to  this,  alleging  that  the  archbishop  had  in  person  pre- 
sented the  complaint.  Appeal  was  made  to  the  Parlement  of  Paris,  which 
decided  that  the  defendant's  logic  was  correct,  and  that  the  personal  oath  of 
the  prelate  was  requisite.     (Olim,  I.  765.) 

In  Spain,  a  bishop  appearing  in  a  secular  court,  either  as  plaintiff  or 


GENERALLY     USED    BY    ECCLESIASTICS.  20 

the  matter  to  the  discretion  <>r  bis  prelates;1  but  this  had 
no  practical  result,  in  823,  Pope  Pascal  I.  was  more  than 
inspected  of  complicity  In  the  murder  of  Theodore  and 
Leo,  two  high  dignitaries  of  the  papal  court.  Desirous  to 
avoid  an  Investigation  by  the  commissioners  of  Louis-le- 
'Pebonnaire.   who   were    sent   for   that   purpose,  he    hastily 

purged  himself  of  the  crime  in  anticipation  of  their  arrival) 

by  an  oath  taken  with  a  number  of  bishops  as  his  com- 
purgators;8 and  it  is  a  striking  example  of  the  weight 
attaching  to  the  system,  that  although  the  assumed  fault 
of  the  victims  had  been  their  devotion  to  the  imperial 
party)  and  though  the  Pope  had  by  force  of  arms  prevented 
any  pursuit  of  the  murderers,  the  Emperor  was  powerless 
to  exact  satisfaction,  and  there  was  nothing  further  to  be 
done.  Pope  Pascal  stood  before  the  world  an  innocent 
man. 

It  is  true  that,  in  the  tenth  century,  Atto  of  Vercelli 
complains  bitterly  that  a  perverse  generation  refused  to  be 
satisfied  with  the  single  oath  of  an  accused  priest,  and  re- 
quired him  to  be  surrounded  b}r  compurgators  of  his  class,3 
which  that  indignant  sacerdotalist  regarded  as  a  grievous 
wrong.  As  the  priesthood,  however,  failed  in  obtain  inu- 
tile entire  immunity  for  which  they  strove  during  those 
turbulent  times,  the  unquestioned  advantages  which  com- 
purgation afforded  recommended  it  to  them  with  constantly 
increasing  force.  Forbidden  at  length  to  employ  the  duel  in 
settling  their  differences,  and  endeavoring,  in  the  eleventh 
and  twelfth  centuries,  to  obtain  exemption  from  the  ordeal, 
they  finally  accepted  compurgation  as  the  special  mode  of 

defendant,  was  not  exempted  from  the  oath,  hut  had  the  singular  privilege 
of  not  being  compelled  to  touch  the  Gospels  on  which  he  swore. — Siete  Par- 
tidas,  P.  in.  Tit.  xl.  I.  24. 

1  Capit.  de  Purgat.  Sacerd.  ann.  803. 

'  Eginhard.  Annal.  ann.  823. 

3  Satisfactionem  igitur  accusati  sacerdotis  suh  jurejurando  minime  dicunt 
valere,  nisi  plures  etiam  sacerdotes  secum  compellat  jurare. — Atton.  de  Pres 
suris  Ecclesiast.  P.  I. 

3* 


30  THE    WAGER    OF    LAW. 

trial  adapted  to  members  of  the  church,  and  for  a  long 
period  we  find  it  recognized  as  such  in  all  the  collections 
of  canons  and  writings  of  ecclesiastical  jurists.1  From  this 
fact  it  obtained  its  appellation  of  "  purgatio  canonica,"  or 
canonical  compurgation. 

As  already  remarked,  the  origin  of  the  custom  is  to  be 
traced  to  the  principle  of  the  unity  of  families.  As  the 
offender  could  summon  his  kindred  around  him  to  resist  an 
armed  attack  of  the  injured  party,  so  he  took  them  with 
him  to  the  court,  to  defend  him  with  their  oaths.  Accord- 
ingly, we  find  that  the  service  was  usually  performed  by 
the  kindred,  and  in  some  codes  this  is  even  prescribed  by 
law,  though  not  universally.2     The  practical  working  of  the 

1  Burchardus,  Ivo,  Gratianus,  passim. — Ivon.  Epist.  74. 

2  L.  Longobard,  Lib.  n.  Tit.  xxi.  §  9,  Tit.  lv.  §  12.— L.  .Burgund,  Tit. 
via.— L.  Eccles.  Hoeli  Dha  c.  -26.  Laws  of  Ethelred,  Tit.  ix.  §§  23,  24.— L. 
Henrici  I.  cap.  Ixxiv.  §  1. — See  also  the  decretal  of  Gregory  II.  alluded  to 
above. 

This  point  affords  an  illustration  of  the  divergent  customs  of  the  Latin  and 
Teutonic  races.  The  Roman  law  exercised  great  discrimination  in  admitting 
the  evidence  of  a  relative  to  either  party  in  an  action  (Pauli  Sentent.  Lib. 
v.  Tit.  xv. — LI.  4,  5,  6,  9.  Dig.  xxn.  v.).  The  Wisigoths  not  only  adopted 
this  principle,  but  carried  it  so  far  as  to  exclude  the  evidence  of  a  kinsman 
in  a  cause  between  his  relative  and  a  stranger  (L.  Wisigoth.  Lib.  II.  Tit.  iv. 
c.  12),  which  was  adopted  into  the  Carlovingian  legislation  (Benedict.  Levit. 
Capitul.  Lib.  VI.  c.  348)  under  the  strong  Romanizing  influence  which  then 
prevailed.  The  rule,  once  established,  retained  its  place  through  the  vicissi- 
tudes of  the  feudal  and  customary  law  (Beaumanoir,  Coutumes  du  Beau- 
voisis,  cap.  xxxix.  §  38. — Cout.  de  Bretagne,  Tit.  viii.  art.  161,  162). 

On  the  other  hand,  the  Teutonic  custom  is  shown  as  still  influential  in  the 
eleventh  century,  by  a  law  in  which  the  Emperor  Henry  II.  directs  the  em- 
ployment of  twelve  of  the  nearest  relations  as  conjurators,  in  default  of  three 
peers  of  the  accused — "cum  tribus  paribus  se  expurget ;  si  autem  pares 
habere  non  potuerit,  cum  duodecim  propinquioribus  parentibus  se  defendat" 
(Feudorum  Lib.  v.  Tit.  ii.).  It  was  a  settled  principle  in  the  Danish  law  to 
a  later  period.  A  code  of  the  thirteenth  century  directs  "  Factum  autem  si 
negat,  cognatorum  jurejurando  se  tueatur"  (Leg.  Cimbric.  Lib.  II.  c.  9)  ;  and 
in  another  of  the  thirteenth  and  fourteenth  centuries  it  is  even  more  strongly 
developed :  "  Si  juramento  cognatorum,  quod  dicitur  neffn  i  kyn  se  non  de- 
fenderit,  solvat  bondoni  XL.  marcas,  et  regi  ta^tum''  (Constit.  Woldemari 
Regis,  \  ix.  also  §§  52,  56,  etc.).     He  who  had  no  relatives  was  obliged  to 


NUMBER    OF    CONJUItATORS    REQUIRED.  31 

custom  [g  [airly  illustrated  by  a  case  recounted  l»v  Aimoin 
:is  oecurriug  onder  Chilperic  I.  in  the  latter  hair  of  the 

sixth  century.  A  wile  suspected  by  her  husband  offered 
the  oath  of  purgation  <>u  the  altar  of  St.  Denis  with  her 
relatives,  who  were  persuaded  of  her  innocence;  the  hus- 
band not  yet  satisfied,  accused  the  Compurgators  of  per- 
jury, and  the  fierce  passions  of  both  parties  becoming  ex- 
cited, weapons  were  speedily  drawn,  and  the  sanctity  of  the 
venerable  church  was  profaned  with  blood.1 

It  was  manifestly  impossible,  how  ever,  to  enforce  the  rule 
of  kinship  in  all  cases,  for  the  number  of  compurgators 
varied  in  the  different  codes,  and  in  all  of  them  a  great 
number  were  required  when  the  matter  at  stake  was  Large, 
or  the  crime  or  criminal  important.  Thus  when  Chilperic 
I.  was  assassinated  in  584,  doubts  were  entertained  as  to 
the  legitimacy  of  his  son  Clotair,  an  infant  of  four  months 
• — doubts  which  neither  the  character  of  Queen  Fredegonda 
nor  the  manner  of  Chilperic's  death  had  aii}r  tendency  to 
lessen ;  and  Gontran,  brother  of  the  murdered  king,  did  not 
hesitate  to  express  his  belief  that  the  royal  child's  paternity 
was  traceable  to  some  one  of  the  minions  of  the  court — 
a  belief  doubtless  stimulated  by  the  promise  it  afforded 
him  of  another  crown.  Fredegonda,  however,  repaired  her 
somewhat  questionable  reputation  and  secured  the  throne 
to  her  offspring,  by  appearing  at  the  altar  with  three  bishops 
and  three  hundred  nobles,  who  all  swore  with  her  as  to 
the  legitimac}-  of  the  little  prince,  and  no  further  doubts 
were  ventured  on  the  delicate  subject.3  A  similar  case 
occurred  in  Germany  in  899,  when  Queen  Uta  cleared  her- 

take  an  oath  to  that  effect,  and  then  he  was  permitted  to  produce  twelve 
other  men  of  proper  character,  lag  fe.ste  men.  (Ibid.  $  86.)  A  relic  of  the 
same  principle  is  shown  at  the  same  period  in  a  provision  of  the  municipal 
law  of  Southern  Germany,  by  which  a  child  under  fourteen  years  of  age, 
when  accused  of  any  crime,  could  be  cleared  by  the  purgatorial  oath  of  the 
father  (Jur.  Provin.  Alaman.  cap   clxix.  \  1). 

1  Airaoini  Lib.  in.  c.  29. 

2  (Ireg.  Turon.  Lib.  Till.  c.  9. 


32  THE    WAGER    OF    LAW. 

self  on  an  accusation  of  infidelity,  by  taking  a  purgatorial 
oath  with  eighty-two  nobles.1  So  in  824,  a  dispute  between 
Hubert,  Bishop  of  Worcester,  and  the  Abbey  of  Berkeley, 
concerning  the  monastery  of  Westbury,  was  settled  by  the 
oath  of  the  bishop,  supported  by  those  of  fifty  mass-priests, 
ten  deacons,  and  a  hundred  and  fifty  other  ecclesiastics.8 
These  were,  perhaps,  exceptional  cases,  but  in  Wales, 
where  the  custom  was  perpetuated  until  the  fifteenth  cen- 
tury, a  form  of  it  was  known  under  the  name  of  assalh,  in 
which  no  less  than  three  hundred  conjurators  were  habitu- 
ally required.3 

Under  these  circumstances,  it  is  evidently  impossible  that 
a  kindred  sufficiently  large  could  have  been  assembled  in  the 
most  numerous  families,  and  even  when  the  requirements 
were  more  reasonable,  the  same  difficulty  must  frequently 
have  occurred.  Among  all  tribes,  therefore,  the  aid  of  those 
not  connected  by  ties  of  blood  must  often  have  been  neces- 
sary, and  as  it  was  a  service  not  without  danger,  as  we  shall 
see  hereafter,  it  is  not  easy  to  understand  how  the  requisite 
number  was  obtained.  In*  certain  cases,  no  doubt,  the 
possibility  of  obtaining  those  not  bound  by  kindred  to 
undertake  the  office  is  traceable  to  the  liability  which  in 
some  instances  rested  upon  a  township  for  crime  com- 
mitted within  its  borders.4 

1  Herman.  Contract,  ann.  899. 

3  Spelman.  Concil.  I.  335. 

3  Ou  que  ils  vourront  se  excuser  (de  la  mort  dez  tiels  rebellez  ensy  tuez) 
per  un  assath  selonque  la  custume  de  Gales,  cest  a,  dire,  per  le  serment  du 
ccc.  homines,  etc. — I.  Henry  V.  cap.  vi.  (Spelman.  Gloss,  s.  v.  Assath). 
'  4  This  has  been  denied  by  those  who  assume  that  Ihefrithborgs  of  Edward 
the  Confessor  are  the  earliest  instance  of  such  institutions,  but  traces  of  con£ 
munal  societies  are  to  be  found  in  the  earliest  text  of  the  Salique  law  (First 
text  of  Pardessus,  Tit.  xlv.),  and  both  Childebert  and  Clotair  II.,  in  edicts 
promulgated  near  the  close  of  the  sixth  century,  hold  the  hundreds  or 
townships  responsible  for  robberies  committed  within  tfieir  limits  (Decret. 
Childeberti  ann.  595,  c.  10— Decret.  Chlotarii  II.  c.  1). 

It  is  not  improbable  that,  as  the  family  was  liable  for  the  misdeeds  of  its 
members  among  all  the  barhnrinn  races,  so  the  tribe  or  clan  of  the  offender  was 


NUM11ER    OP    CONJURATORS.  83 

It  would  be  endless  to  specify  all  the  variations  in  the 
numbers  required  by  the  different  codes  in  all  Imaginable 
cases  of  quarrel  between  every  class  of  society.  A  few 
generalizations  ma}',  however,  be  deduced  from  among  the 
chaotic  and  conflicting  mass  of  regulations  which  are  to  be 
found  in  the  laws  of  the  numerous  races  who  adhered  to  the 
custom  for  so  many  centuries.  Many  elements  entered  into 
this ;  the  nature  of  the  crime  or  claim,  the  station  of  the  par- 
ties, the  rank  of  the  compurgators,  and  the  mode  by  which 
t  hey  were  selected.  Thus,  in  the  simplest  and  most  ancient 
form,  the  Salique  law  merely  specifies  twenty-five  compur- 
gators to  be  equally  chosen  by  both  parties.1  Some  for- 
mulas of  Marculfus  specify  three  freeholders  and  twelve 
friends  of  the  accused.3  A  Merovingian  edict  of  593  directs 
the  employment  of  three  peers  of  the  defendant,  with  three 
others  chosen  for  the  purpose,  probably  by  the  court.3 
Alternative  numbers,  however,  soon  make  their  appearance, 
depending  upon  the  manner  in  which  they  were  chosen. 
Thus  among  the  Alamanni,  on  a  trial  for  murder,  the 
accused  was  obliged  to  secure  the  support  of  twenty  chosen 
men,  or,  if  he  brought  such  as  he  had  selected  himself,  the 
number  was  increased  to  eighty.4     So  in  a  capitulary  of 

liable  when  the  offence  was  committed  upon  a  member  of  another  tribe,  and 
such  edicts  as  those  of  Childebert  and  Clotair  were  merely  adaptations  of  the 
rule  to  the  existing  condition  of  society.  The  most  perfect  early  code  that 
has  reached  us,  that  of  the  ancient  Irish,  expresses  in  detail  the  responsibility 
of  each  sept  for  the  actions  not  only  of  its  members,  but  of  those  also  who 
were  in  any  way  connected  with  it.  "And  because  the  four  nearest  tribes 
bear  the  crimes  of  each  kinsman  of  their  stock.  .  .  .  And  because  there  are 
four  who  have  an  interest  in  every  one  who  sues  and  is  sued  :  the  tribe  of* 
the  father,  the  chief,  the  church,  the  tribe  of  the  mother  or  foster-father. 
.  .  .  Every  tribe  is  liable  after  the  absconding  of  a  member  of  it,  after  notice, 
after  warning,  and  after  lawful  waiting." — Senchus  Mor.  I.  263-5. 

1  First  text  of  Pardessus,  Tit.  xlii.  §  5. 

2  Insequentur  vero  post  ipso  tres  aloarii  et  duodecim  conlaudantes  jura- 
verunt. — Marculf.  App.  xxxii.  ;  Ibid.  xxix. 

3  Pact,  pro  Tenore  Pacis  cap.  vi. 

4  L.  Alaman.  Tit.  lxxvi.     So  in  922  the  Council  of  Coblentz  directed  that 
accusations  of  sacrilege  could  be  rebutted  with  "  XXIV  totis  nominate  at<(ue 


34  THE    WAGER    OP    LAW. 

803  Charlemagne  prescribes  seven  chosen  conjivrators,  or 
twelve  if  taken  at  random,1  a  rule  which  is  virtually  the 
same  as  that  laid  down  by  the  Emperor  Henry  III.  in  the 
middle  of  the  eleventh  century.3 

Variations  likewise  occur  arising  from  the  nature  of  the 
case  and  the  character  of  the  plaintiff.  Thus  in  the  Scottish 
law  of  the  twelfth  century,  in  a  criminal  charge,  a  man  could 
defend  himself  against  his  lord  with  eleven  men  of  good 
character,  but  if  the  king  were  the  accuser,  twenty-four 
were  requisite,  who  were  all  to  be  his  peers,3  while  in  a  civil 
case  twelve  were  sufficient.4  So  in  the  burgher  laws  of 
David  I.,  ordinary  cases  between  citizens  were  settled  with 
ten  conjurators,  but  eleven  were  necessary  if  the  king  were 
a  party,  or  if  the  matter  involved  the  life,  limb,  or  lands  of 
one  of  the  contestants.5  Instances  also  occur  in  which  the 
character  of  the  defendant  regulated  the  number  required. 
Among  the  Welsh,  the  laws  of  Hoel  Dha  provide  that  a 
wife  accused  of  infidelity  could  disprove  a  first  charge  with 
seven  women ;  if  her  conduct  provoked  a  second  investiga- ' 
tion,  she  had  to  procure  fourteen ;  while,  on  a  third  trial, 
fifty  female  conjurators  were  requisite  for  her  escape.8    In 

electis  viris  .  .  .  aut  aliis  non  nominatis  tamen  ingenuis  LXXIL"  (Hartz- 
heim  Concil.  German.  II.  600.) 

1  Capit.  Car.  Mag.  IV.  ann.  803,  cap.  x. 

2  Et  caeteris  hominibus  non  plus  debent  quam  septem  personas,  suis  vero 
sociis  duodecim. — Goldast.  Constit.  Imp.  I.  231. 

3  Quoniam  Attachiamenta  cap.  xxiv.  §§  1,  4.  In  another  code  of  nearly 
the  same  period,  in  simple  cases  of  theft,  when  the  accuser  had  no  testimony 
to  substantiate  his  claim,  thirty  conjurators  were  necessary,  of  whom  three 
.must  be  nobles. — Regiam  Majestatem  Lib.  iv.  c.  21. 

4  Quoniam  Attachiamenta  cap.  lxxv.  §§  1,  4. 

s  Leg.  Burgorum  cap.  xxiv.  §  3.  In  cases  occurring  between  a  citizen 
and  a  countryman,  each  party  had  to  provide  conjurators  of  his  own  class. — 
Ibid.  $  1. 

6  Leg.  Eccles.  Hoeli  Dha  cap.  14. — It  is  worthy  of  remark  that  one  of  the 
few  directions  for  legal  procedures  contained  in  the  Koran  relates  to  cases 
of  this  kind.  Chapter  xxiv.  6-9  directs  that  a  husband  accusing  his  wife  of 
infidelity,  and  having  no  witnesses  to  prove  it,  shall  substantiate  his  assertion 
by  swearing  five  times  to  the  truth  of  the  charge,  invoking  upon  himself  the 


SELECTION    Or     (   < »  \  .1  U  It  A  T  0  It  S  . 

tin-  A  n.eJo-Saxnn  jurisprudence,  the  frangens  jnsji/rtiinJii  ///, 
ms  it  was  called,  ejvw  to  lie  an  exceedingly  complex  system 
in  the  rules  by  which  the  niiinlicr  an<l  quality  of'the  conju- 
rators  were  regulated  according  to  the  nature  of  the  crime 
and  the  iank  of  the  accused.  Ill  cases  of  peculiar  atrocity, 
such  as  a  violation  of  the  sanctity  of  the  grave,  only  thanes 
were  esteemed  competent  to  appeal.1  In  fact,  among  the 
Anglo-Saxons,  the  value  of  a  man's  oath  was  rated  accord- 
in  g  to  his  rank,  that  of  a  thane,  for  instance,  being  equal 
to  those  of  seven  yeomen.2  The  same  peculiarity  is  ob- 
servable among  the  Frisians,  whose  laws  required  that 
compurgators  should  be  of  the  same  class  as  their  principal, 
and  the  lower  his  position  in  the  State,  the  larger  was  the 
number  requisite.3 

Equally  various  were  the  modes  adopted  for  the  selection 
of  compurgators.  Among  the  untutored  barbarians,  doubt- 
less, the  custom  was  originally  universal  that  the  defendant 
procured  the  requisite  number  of  his  friends,  whose  oaths 

malediction  of  God;  while  the  wife  was  able  to  rebut  the  accusation  by  the 
same  process.  As  this  chapter,  however,  was  revealed  to  the  Prophet  after 
he  had  writhed  for  a  month  under  a  charge  brought  against  his  favorite  wife 
Ayesha,  which  he  could  not  disregard  and  did  not  wish  to  entertain,  the 
law  is  rather  to  be  looked  upon  as  ex  jwst  facto  than  as  indicating  any 
peculiar  tendency  of  the  age  or  race. 

1  Wealreaf,  i.e.  mortuum  refere,  est  opus  nithingi;  si  quis  hoc  negare 
velit,  faciet  hoc  cum  xlviii.  taynis  plene  nobilibus. — Leg.  iEthelstani,  de  Or- 
dalio. 

2  Sacramentum  liberalis  hominis,  quem  quidem  vocant  twelfhendemant 
debet  stare  et  valere  juramentuni  septem  villanorum.  (Leg.  Cnuti  cap.  127.) 
The  ttvelfhendeman  meant  a  thane  (Twelfhindus  est  homo  plene  nobilis  i. 
Thainus. — Leg.  Henrici  I.  Tit.  Ixxvi.  §  4),  whose  price  was  1200  solidi.  So 
thoroughly  did  the  structure  of  jurisprudence  depend  upon  the  system  of 
wehrgild  or  composition,  that  the  various  classes  of  society  were  named 
according  to  the  value  of  their  heads.  Thus  the  villein  or  cherleman  was 
also  called  twyhindus  or  twyhi?uleman,  his  wehrgild  being  200  solidi ;  the 
radenicht  (road-knight,  or  mounted  follower)  was  a  sex/ieudeman  ;  and  the 
comparative  judicial  weight  of  their  oaths  followed  a  similar  scale  of  valua- 
tion, which  was  in  force  even  subsequently  to  the  Conquest.  (Leg.  Henrici  I. 
Tit.  lxiv.  S  2-) 

3  L.  Frision.  Tit.  I. 


36  THE    WAGER    OF     LAW. 

were  sufficient  for  his  discharge.  Even  to  a  comparatively 
late  period  this  prevailed  extensively,  and  its  evils  were 
forcibly  pointed  out  by  Hincmar  in  the  ninth  century.  In 
refusing  to  admit  the  purgation  of  an  offending  priest  with 
ecclesiastics  of  his  own  choice,  he  states  that  evil-minded 
men  combined  together  to  defeat  justice  and  secure  immu- 
nity for  their  crimes  by  serving  each  other  in  turn,  so  that 
when  the  accused  insisted  on  offering  his  companions  to 
the  oath,  it  was  necessary  to  make  them  undergo  the  or- 
deal to  prove  their  sincerity.1  His  expressions  show  that 
the  question  of  selection  at  that  time  was  undecided  in 
France,  and  the  alternative  numbers  alluded  to  above 
prove  that  efforts  had  been  made  to  remove  the  difficulty 
without  success.  Other  nations,  however,  met  the  ques- 
tion more  decidedly.  The  original  Lombard  law  of  King 
Ilotharis  gave  to  the  plaintiff  the  privilege  of  naming  a 
majority  of  the  compurgators,  the  remainder  being  chosen 
by  the  defendant,3  but  even  in  this  the  solidarity  of  the 
family  was  recognized,  since  it  was  the  duty  of  the  plain- 
tiff to  select  the  nearest  relatives  of  his  adversary.3  The 
English  law  was  the  first  to  educe  a  rational  mode  of  trial 
from  the  absurdity  of  the  barbaric  traditions,  and  there  it 
finally  assumed  a  form  which  occasionally  bears  a  striking 
resemblance  to  trial  by  jury — in  fact,  it  insensibly  runs  into 
this  latter,  to  which  it  probably  gave  rise.  By  the  laws  of 
Canute,  in  some  cases,  fourteen  men  were  named  to  the 
defendant,  among  whom  he  was  obliged  to  find  eleven  will- 
ing to  take  the  purgatorial  oath  with  him.4     The  selection 

1  Si  autem  denominatos  a  nobis  sibi  presbyteros  ad  famam  suam  purgan- 
dam  habere  nequit,  et  alios  ad  secum  jurandum  conduxerit,  quoniam  experti 
sumus  quosdam  ad  invicem  conspirasse,  et  repetiti  mutuo  in  sua  purgatione 
jurent,  etc. — Hincmari  Epist.  xxxiv.  So  also  in  his  Capit.  Synod,  ann.  852, 
II.  xxv. 

2  L.  Longobard.  Lib.  II.  Tit,  lv.  §  5. 

3  Ibid.  Tit.  xxi.  §  9.  The  plaintiff,  however,  was  prohibited  from  nomi- 
nating any  of  the  family  who  were  personally  hostile  to  the  defendant. 

4  Nominentur  ei  XIV.,.  et  adquirat  XI.,  et  ipse  sit  duodecimus.— L.  Cnuti 
c.  lxvi. 


SELECTION    OF    CONJURATORS.  37 

of  these  virtual  Jurors  waa  probably  made  by  the  g< 
or  sheriff;1  they  could  be  challenged  for  suspicion  of  par- 
tiality or  other  com  petenl  cause,*  and  were  liable  to  rejec- 
tion unless  unexceptionable  In  every  particular.1  Very  sim- 
ilar to  tliis  was  the  stock  »<'(/'»  of  the  ancient  Danish  [aw,  by 
Which,  in  cases  where  the  relatives  were  not  called  upon, 
thirteen  men  were  chosen,  a  majority  of  whom  could  clear 
the  accused  by  taking  the  oath  with  him.  They  were  nom- 
inated by  a  person  appointed  for  the  purpose,  and  if  the 
court  neglected  this  duty,  the  privilege  enured  to  the  plain- 
tiff.* 

The  Northern  nations  were  evidently  less  disposed  to 
favor  the  accused  than  the  Southern.  In  Sweden  and 
Denmark,  another  regulation  provides  that  although  the 
defendant  had  a  right  to  demand  this  mode  of  purgation, 
yet  the  plaintiff  had  the  selection  of  the  twelve  men  who 
served  as  conjurators ;  three  of  these  the  accused  could 
challenge  for  enmity,  but  their  places  were  supplied  by  the 
plaintiff.5  The  evanescent  code  compiled  for  Norway  and 
Iceland  byr  Haco  Haconsen  towards  the  close  of  the  thir- 
teenth centuryT  is  more  equitable  in  its  provisions.  Though 
it  leaves  the  nomination  of  the  conjurators  to  the  defendant , 
the  choice  is  subject  to  limitations  which  placed  it  virtually 
in  the  power  of  the  court.  They  were  required  to  be  men 
of  the  vicinage,  of  good  repute,  peers  of  the  accused,  and 
in  no  way  connected  with  him  b}'  blood  or  other  ties.8 

Such  care  in  the  selection  of  those  on  whom   duties 

1  Laws  ofEthelred,  Tit.  in.  c.  xiii. 

2  L.  Henrici  I.  Tit.  xxxi.  §  8. 

3  Ibid.  Tit.  lxvi.  §  10. 

4  Constit.  Woldemari  Regis,  §§  lii.  lxxii. 

*  L.  Scania)  Lib.  vii.  c.  8.— Chart.  Woldemari  Regis,  ann.  1163.  (Da 
Cange  s.  v.  Juramentum.) 

6  Ejusdem  ac  ipse  dignitatis,  proxume  habitantes,  et  hujus  rei  maxirae 
gnari,  nee  affinitatis  nee  intercedentium  causarum  vinculo  cum  reo  conjuncti, 
adultaj  astatis  ac  judicii,  nee  in  antecessum  aut  perjurii  aut  falsi  testimonii 
nota  infaines. — Jamsida,  Thiofa-Balkr,  cap.  ix.  x. 
4 


38  THE    WAGER    OF    LAW. 

so  responsible  devolved  did  not  prevail  among  the  more 
Southern  races  at  an  earlier  age.  Among  the  Lombards, 
slaves  and  women  in  tutelage  were  often  employed.1  The 
Burgundians  required  that  the  wife  and  children,  or,  in 
their  absence,  the  father  and  mother  of  the  accused  should 
assist  in  making  up  the  number  of  twelve,2  and  the  idle 
nature  of  the  ceremony  under  such  regulations  is  shown 
by  its  prohibition  under  Charlemagne  for  the  reason  that 
it  led  to  the  swearing  of  children  of  tender  and  irrespon- 
sible age.3  That  legislator,  however,  contented  himself 
with  forbidding  those  who  had  once  been  convicted  of  per- 
jury from  again  appearing  either  as  witnesses  or  conjura- 
tors  ;4  and  the  little  care  that  was  deemed  necessary  in  their 
selection  is  shown  by  a  law  of  Louis-le-Debonnaire  ordering 
that  landless  freemen  should  be  allowed  to  serve  as  con- 
jurators,  though  ineligible  as  witnesses.5  A  truer  concep- 
tion of  the  course  of  justice  is  manifested,  some  centuries 
later,  by  the  Bearnese  legislation,  which  required  that  the 
seguidors  "or  conjurators  should  be  men  able  to  pay  the 
amount  at  stake,  together  with  the  fine  incurred  by  the 
losing  party,6  or  that  they  should  be  fair  and  loyal  men, 
not  swayed  by  enmity.7 

Yariations  are  likewise  observable  in  the  form  of  admin- 
istering the  oath.  Among  the  Alamanni,  for  instance,  the 
compurgators  laid  their  hands  upon  the  altar,  and  the 
principal  placed  his  hand  over  the  others,  repeating  the 
oath  alone  ;8  while  among  the  Lombards,  a  law  of  the  Em- 
peror Lothair  directs  that  each  shall  take  the  oath  sepa- 
rately.9    It  was  always,  however,  administered  in  a  conse- 

1  L.  Longobard.  i.  xxxiii.  1,  3.  3  L.  Burgund.  Tit.  viii. 

3  Capit.  Car.  Mag.  i.  arm.  789  c.  Ixii.  4  Ibid. 

6  Capit.  Ludov.  Pii  arm.  829  Tit.  in.  §  vi. 

6  For  de  Morlaas,  Rubr.  xli.  art.  146-7.  The  same  capacity  was  required 
of  the  testimonis  or  witnesses. 

7  Que  sien  boos  et  loyaus,  et  que  no  sien  enemicxs. — Fors  de  Beam,  Rubr. 

XXX. 

8  L.  Alaman.  Tit.  vi.  n  L. -Longobard.  Lib.  II.  Tit.  lv.   6  28. 


VALUE    OF    COMPURGATION.  39 

grated  place,  before  delegates  appointed  by  the  Judges 
trying  the  cause,  sometimes  <>n  the  altar  and  sometimes  on 
relics.  A  formula  of  Marculfus  specifies  the  Capella  S. 
Martini,  or  cope  of  St.  ^lartin,1  one  of  the  most  venerated 
relics  of  the  royal  chapel,  whence  we  may  perhaps  conclude 
that  it  was  habitually  used  for  that  purpose  in  the  business 
of  the  royal  Court  of  Appeals. 

There  has  been  much  discussion  as  to  the  exact  nature 
and  legal  weight  of  this  mode  of  establishing  innocence  or 
vindicating  disputed  rights.  Some  authors  assume  thai  in 
the  early  period,  before  the  ferocious  purity  of  the  German 
character  had  become  adulterated  with  the  remains  of  Ro- 
man civilization,  it  was  used  in  all  descriptions  of  cases, 
at  the  option  of  the  defendant,  and  was  in  itself  a  full  and 
satisfactory  proof,  received  on  all  hands  as  equal  to  any 
other.9  The  only  indication  that  I  have  met  with  tending 
to  the  support  of  such  a  conjecture  occurs  in  the  Lombard 
code,  where  Rotharis,  the  earliest  compiler  of  written  laws, 
abolishes  a  previously  existing  privilege  of  denying  under 
oath  a  crime  after  it  had  been  confessed.3  A  much  more 
powerful  argument  on  the  other  side,  however,  is  derivable 
from  the  earliest  text  of  the  Salique  law,  to  which  reference 
has  already  been  made.  In  this,  the  formula  shows  clearly 
that  conjurators  were  only  employed  in  default  of  other 
testimony  ;4  and  what  lends  additional  force  to  the  conclu- 

1  Marculf.  Lib.  I.  Formul.  xxxviii. 

"  Kbnigswarter,  Etudes  Historiques,  p.  167. 

3  Nam  nulli  liceat,  postquam  manifestaverit,  postea  per  sacramentum 
negare,  quod  non  sit  culpabilis,  postquam  ille  se  culpabilem  assignavit. 
Quia  multos  cognovimus  in  regno  nostro  tales  pravas  opponentes  intentiones, 
et  ba;c  moverunt  nos  praesentem  corrigere  legem,  et  ad  meliorem  statum 
revocare. — L.  Longobard.  Lib.  ir.  Tit.  It.  §  8. 

*  *  Si  quis  hominem  ingenuo  plagiaverit  et  probatio  certa  non  fuit,  sicut 
pro  occiso  juratore  donet.  Si  juratores  non  potuerit  invenire,  VIII  M  dina- 
rio.=,  qui  faciunt  solidos  CC,  culpabilis  judicetur. — Tit.  xxxix.  §2.  A  simi- 
lar provision — "si  tamen  probatio  certa  non  fuerit" — occurs  in  Tit.  xlii.  §  5. 


40  THE    WAGER    OF    LAW. 

sion  is  that  this  direction  disappears  in  subsequent  revisions 
of  the  law,  wherein  the  influences  of  Christianity  and  of 
Roman  civilization  are  fully  apparent.  No  safe  deduc- 
tions, indeed,  can  be  drawn  from  mere  omissions  to  specify 
that  the  absence  of  witnesses  was  necessary,  for  these  ancient 
codes  are  drawn  up  in  the  rudest  possible  manner,  and 
regulations  which  might  safely  be  presumed  to  be  familiar 
to  every  one  would  not  be  repeated  in  their  curt  and  bar- 
barous sentences  with  the  careful  redundancy  of  verbiage 
which  marks  our  modern  statutes.  Thus  there  is  a  passage 
in  the  code  of  the  Alamanni  which  declares  in  the  most 
absolute  form  that  if  a  man  commits  a  murder  and  desires 
to  deny  it,  he  can  clear  himself  with  twelve  conjurators.1 
This,  by  itself,  would  authorize  the  assumption  that  com- 
purgation was  allowed  to  override  the  clearest  and  most 
convincing  testimony,  yet  it  is  merely  a  careless  form  of 
expression,  for  another  section  of  the  same  code  expressly 
provides  that  where  a  fact  is  proved  by  competent  witnesses 
the  defendant  shall  not  have  the  privilege  of  producing 
compurgators.2 

It  therefore  seems  to  me  evident  that,  even  in  the  earliest 
times,  this  mode  of  proof  was  only  an  expedient  resorted 
to  in  cases  of  doubt,  and  on  the  necessity  of  its  use  the 
rachinborgs  or  judges  probably  decided.  That  it  was  so 
in  subsequent  times  is  generally  admitted.  It  is  scarcely 
worth  while  to  multiply  proof;  but  a  few  references  will 
show  the  light  in  which  the  custom  was  regarded.3 

1  Si  quis  hominem  occiderit  et  negare  voluerit,  cum  duodecim  nominatis 
juret. — L.  Alaman.  Tit.  lxxxix. 

2  Ibid.  Tit.  xlii. 

3  For  instance,  in  the  Baioarian  law — "Nee  facile  ad  sacramenta  veniatur 
...  In  his  vero  causis  sacramenta  prscstentur  in  quibus  nullam  probationer 
discussio  judicantis  invenerit."  (L.  Baioar.  Tit.  vm.  c.  16.)  In  a  Capitu- 
lary of  Louis-le-Debonnaire, — "  Si  hujus  facti  testes  non  habuerit  cum  duo- 
decim conjuratoribus  legitimis  per  sacramentum  adfirmet."  (Capit.  Ludov. 
Pii  ann.  819  §  1).  In  one  of  the  Emperor  Lothair, — "  Si  testes  habere  non 
poterit,  concedimus  ut  cum  XII.  juratoribus  juret."    (L.  Longobard.  Lib.  i. 


SEPULC  II  B  A. L    OATHS.  41 

Confidence  in  its  ability  to  supplement  absent  or  deficient 
testimony  was  manifested  in  a  singular  form — the  jura- 
mentum  supermortuum — which  was  employed  by  various 
races,  a1  wide  intervals  of  time,  Thus, in  the  earliest  Legis- 
lation <>i'  the  Anglo-Saxons,  we  find  t lint  when  the  defendant 

or  an  important  witness  was  dead,  the  Oath  which  he  would 
have  taken  or  the  deposition  which  he  would  have  made 
was  obtained  by  proceeding  to  his  tomb,  where  a  certain 
number  of  conjurators  swore  as  to  what  he  could  or  would 
have  done  if  alive.1  Two  centuries  later,  the  same  custom 
is  alluded  to  in  the  Welsh  laws  of  Hoel  Dha,2  and  even  as 
lat  i>  as  the  thirteenth  century  it  was  still  in  force  in  Southern 
Germany.3 

Tit.  ix.  §  37.)  So  Louis  II.,  in  854,  ordered  that  a  man  accused  of  harboring 
robbers,  if  taken  in  the  act,  was  to  be  immediately  punished,  but  if  merely 
cited  on  popular  rumor,  he  was  at  liberty  to  clear  himself  with  twelve  com- 
purgators.  (Recess.  Ticinen.  Tit.  II.  cap.  3.) 

It  was  the  same  in  subsequent  periods.  The  Scottish  law  of  the  twelfth 
century  alludes  to  the  absence  of  testimony  as  a  necessary  preliminary,  but 
when  an  acquittal  was  once  obtained  in  this  manner,  the  accused  seems  to 
have  been  free  from  all  subsequent  proceedings,  when  inconvenient  witnesses 
might  perhaps  turn  up — "  Et  si  hoc  modo  purgatus  fuerit,  absolvetur  a  pe- 
titione  Regis  in  posterum."  (Regiam  Majestatem,  Lib.  iv.  c.  21.)  So,  in 
the  laws  of  Nieuport,  granted  by  Philip  of  Alsace,  Count  of  Flanders,  in 
1163.  "  Et  si  hoc  scabini  vel  opidani  non  cognoverint,  conquerens  cum 
juramento  querelam  suam  sequetur,  et  alter  se  excusabit  juramento  quinque 
hominum."  (Leg.  secundae  Noviportus.)  The  legislation  of  Norway  and  Ice- 
land in  the  next  century  is  even  more  positive.  "  lis  tantum  concessis  qu» 
legum  codices  sanciunt,  juramenta  nempe  purgatoria  et  accusatoria,  ubi 
legitirai  defuerint  testes."   (Jarnsida,  Mannhelge,  cap.  xxxvii.) 

On  the  other  hand,  an  exception  to  this  general  principle  is  apparently 
found  in  a  constitution  of  the  Emperor  Henry  III.,  issued  about  the  middle 
of  the  eleventh  century  "  Si  quem  ex  his  dominus  suus  accusaverit  de  qua- 
cunque  re,  licet  illi  juramento  se  cum  suis  coaequalibus  absolvere,  exceptis 
tribus  :  hoc  est  si  in  vitam  domini  sui,  autin  camerara  ejus  consilium  habuisse 
arguitur,  aut  in  munitiones  ejus.  Creteris  vero  hominibus  de  quacunque 
objectione,  absque  advocato,  cum  suis  coasqualibus  juramento  se  poterit  ab- 
solvere."    (Groldast.  Constit.  Imp.  I.  231.) 

1  Dooms  of  Ine,  cap.  liii.  2  Leg.  Eccles.  Hoeli  Dha  c.  27 

3  Ea  autem  debita  de  quibus  non  constat,  super  mortuum  probari  debent, 
septima  manu. — Jur.  Provin.  Alaman.  cap.  vii.  §  3. 

4* 


42  THE    WAGER    OF    LAW. 

In  such  cases  as  these,  there  could  be  no  doubt  as  to  the 
absence  of  testimoi^,  but  legal  complications  are  too  vari- 
ous and  perplexing  to  render  all  questions  so  easy  of  solu- 
tion, nor  can  we  expect  to  find,  in  the  simplicity  of  primitive 
laws,  elaborate  general  directions  that  maj^  guide  us  in  any 
attempt  to  investigate  thoroughly  the  principles  which  the 
untutored  barbarian  may  have  applied  to  determine  the  ad- 
missibility of  this  kind  of  evidence.  That  they  were  not 
always  such  as  would  appear  rational  to  us  of  the  nineteenth 
century  may  safely  be  assumed.  The  laws  of  Hoel  Dha  re- 
quired, for  instance,  that  compurgation  should  be  allowed 
only  in  cases  of  uncertainty,1  yet  how  latitudinarian  was  the 
definition  of  uncertainty,  and  how  great  was  the  benefit  of 
the  doubt  interpreted  in  favor  of  the  criminal,  is  shown  by 
its  application  to  parties  taken  in  adultery,  flagrante  de- 
licti^ who  were  allowed  to  escape  on  the  production  of  fifty 
men  to  take  the  oath  with  the  male  culprit,  and  fifty  women 
with  the  female,2  though  what  was  the  verdict  when  the  one 
was  successful  and  the  other  partner  in  guilt  failed,  does 
not  appear. 

The  employment  of  compurgators  also  depended  fre- 
quently upon  the  degree  of  crime  alleged,  or  the  amount  at 
stake.  Thus,  in  many  codes,  trivial  offences  or  small  claims 
were  disposed  of  by  the  single  oath  of  the  defendant,  while 
more  important  cases  required  compurgators,  whose  num- 
bers increased  with  the  magnitude  of  the  matter  in  question. 
This  principle  is  fairly  illustrated  in  a  charter  granted  to 
the  Venetians  in  the  year  1111  by  Henry  V.  In  suits  which 
amounted  only  to  a  silver  pound,  the  oath  of  the  party  was 

1  L.  Eccles.  c.  8.     Et  hoc  tamen  sit  incertum. 

2  The  crudity  of  this  regulation  is  almost  incredible. — "Et  tribus  de  causis 
datur  tale  juramentum.  Si  videatur  mulier  veniens  de  luco  de  una  parte, 
et  vir  veniens  de  altero  parte  ejusdem  luci  in  eadem  hora,  vel  si  videantur 
insimul  jacentes  sub  uno  pallio,  vel  si  videatur  vir  inter  femora  mulieris." 
(Ibid.  cap.  17.)  Perhaps  this  may  be  attributable  to  the  looseness  of  the 
marriage  tie  among  the  Welsh  of  the  period* 


FORMULA    OF    OATH.  ifl 

rafficienl :  but  If  the  oUrim  amounted  to  twelve  pounds  of 
more,  thru  twelve  ohoeea  men  wen  requisite  to  substantiate 
the  oath  of  negation.1 

In  Latex  times,  compurgation  was  also  sometimes  used  ai 
an  alternative  when  circumstances  prevented  the  employ- 
nu'iit  of  other  popular  modes  of  deciding  doubtful  ease* 
Those,  for  instance,  who  would  ordinarily  be  required  to 
defend  themselves  by  the  wager  of  battle,  were  permitted 
by  some  codes  to  substitute  the  oaths  of  a  certain  Dumber 
of  conjurators,  when  precluded  by  advanced  age  from  ap- 
pearing in  the  arena.  The  burgher  law  of  Scotland  affords 
an  example  of  this,9  though  elsewhere  such  cases  were 
usually  settled  by  the  substitution  of  champions. 

The  primitive  law-givers  were  too  chary  of  words  in  t  heir 
skeleton  codes  to  embody  the  formula  usually  employed 
for  the  eompurgatorial  oath.  .  We  have  therefore  no  posi- 
tive evidence  of  its  nature  in  the  earliest  times;  but  as  the 
forms  made  use  of  by  several  races  at  a  somewhat  later 
period  have  been  preserved,  and  as  they  resemble  each 
other  in  all  essential  respects,  we  may  reasonably  assume 
that  little  variation  had  previously  occurred.  The  most 
ancient  that  I  have  met  with  occurs  in  an  Anglo-Saxon 
formulary  which  is  supposed  to  date  from  about  A.I).  900: 
"By  the  Lord,  the  oath  is  clean  and  unperjured  which  X. 
has  sworn."3  A  century  later,  in  a  compilation  of  the 
Lombard  law,  it  appears:  "That  which  the  accused  has 
sworn  is  true,  so  help  me  God."*  The  form  specified  in 
Bearn,  at  a  period  somewhat  subsequent,  is  curt  and  deei- 

1  Lunig  Cod.  Ital.  Diplom.  II.  1955. 

2  Si  burgensis  calumniatus  praeteriit  aetatem  pugnandi,  et  hoe  essoniaverit 
in  sua  responsione,  non  pugnabit.  Sed  juramento  duodecim  talium  qualis 
ipse  fuerit,  se  purgabit. — L.  Burgorum  cap.  24  §§  1,  2. 

3  On  bone  Drihten  se  aS  is  claene  and  unmaene  pe  N.  swor. — Thorpe's  An- 
cient Laws,  I.  180-1. 

4  Hoc  quod  appellatus  juravit,  verum  juravit.  Sic  Deus,  etc. — Formul. 
Vet.  in  L.  Langobard.     (Georgisch,  1275-0.) 


44  THE    WAGER    OF    LAW. 

sive:  "By  these  saints,  he  tells  the  truth;"1  while  the  code 
in  force  in  Normandy  until  the  sixteenth  century  directs 
an  oath  identical  in  spirit :  "  The  oath  which  William  has 
sworn  is  true,  so  help  me  God  and  his  saints."3  It  will  be 
observed  that  all  these,  while  essentially  distinct  from  the 
oath  of  a  witness,  are  still  unqualified  assertions  of  the 
truth  of  the  principal,  and  not  mere  asseverations  of  belief 
or  protestations  of  confidence.  The  earliest  departure  from 
this  positive  affirmation,  in  secular  jurisprudence,  occurs 
in  the  unsuccessful  attempt  at  legislation  for  Norwa}^  and 
Iceland  by  Haco  Haconsen  in  the  thirteenth  century.  In 
this,  the  impropriety  of  such  oaths  is  pointed  out,  and  it  is 
directed  that  in  future  the  compurgator  shall  swear  only, 
in  confirmation  of  his  principal,  that  he  knows  nothing  to 
the  contrary.3 

We  shall  see  that  before  the  custom  fell  into  total  disuse, 
the  change  which  Haco  vainly  attempted  for  his  subjects 
came  to  be  generally  adopted,  in  consequence,  principally, 
of  the  example  set  by  the  church.  Even  before  this  was 
formally  promulgated  by  the  Popes,  however,  ecclesiastics 
occasionally  showed  that  they  were  more  careful  as  to  what 
they  swore,  and  at  a  comparatively  early  period  they  intro- 
duced the  form  of  merely  asserting  their  belief  in  the  oath 
taken  by  their  principal.    Thus,  in  1101,  we  find  two  bishops 

1  Per  aquetz  santz  ver  dits. — Fors  de  Beam,  Ruhr.  LI.  art.  165. 

2  Du  serment  que  Guillaurae  a  jure,  sauf  serment  a  jure,  ainsi  m'aist  Dieu 
et  ses  Sainctz. — Ancienne  Cout.  de  Normandic,  chap,  lxxxv.  (Bourdot  de 
Richebourg,  IV.  54.) 

3  Nobis  adhaec  Deo  coram  periculosum  esse  videtur,  ejus,  cujus  interest, 
jusjurandum  purgatorium  edendo  praeeunte,  omnes  (ab  eo  producti  testes) 
iisdem  ac  ille  conceptis  verbis  jurare,  incerti  quamvis  fuerint,  vera  ne  an 
falsa  jurent.  Nos  legibus  illatum  volumus  ut  ille,  cujus  interest,  jusjuran- 
dum conceptis  verbis  solum  prcestet,  cseteri  vero  ejus  firinent  jusjurandum 
adjicientes  se  nequid  verius,  Deo  coram,  scire,  quain  jurassent. — Jarnsida, 
Mannhelge,  cap.  xxxvii. — The  passage  is  curious,  as  showing  how  little  con- 
fidence was  really  felt  in  the  purgation,  notwithstanding  the  weight  attaching 
to  it  by  law.  * 


w.\  NT    Off    OON  1 1  D  I  WO  I.  US 

endeavoring  to  relieve  a  brother  prelate  from  a  charge  <>f 

simony,  :m<l  their  oompuTgatorial  oath  ventures  no  further 

than  ul believe  that  Norgaud,  Bishop  of  Antnn.  lias  sworn 
the  truth.     So  help  me  God."1 

Notwithstanding  the  universality  of  the  custom,  and  the 
absolute  character  of  the  decisions  reached  by  the  process, 
it  is  easy  to  discern  that  the  confidence  reposed  in  it  was 
of  a  very  qualified  character,  even  at  an  early  period.  The 
primitive  law  of  the  Frisians  describes  some  whimsical 
proceedings,  prescribed  for  the  purpose  of  determining  the 
responsibilit}r  for  a  homicide  committed  in  a  crowd.  The 
accuser  was  at  liberty  to  select  seven  from  among  the  par- 
ticipants of  the  brawl,  and  each  of  these  was  obliged  to 
deny  the  crime  with  twelve  conjurators.  This  did  not 
absolve  them,  however,  for  each  of  them  was  also  indivi- 
dually subjected  to  the  ordeal,  which  finally  decided  as  to 
his  guilt  or  innocence.  In  this,  the  value  of  the  com- 
purgation was  reduced  to  that  of  the  merest  technical  cere- 
mony, and  yet  a  failure  to  procure  the  requisite  number 
of  supporters  was  tantamount  to  a  conviction,  while,  to 
crown  the  absurdity  of  the  whole,  if  any  one  succumbed  in 
the  ordeal,  his  conjurators  were  punished  as  perjurers.3  A 
similar  want  of  confidence  in  the  principle  involved  is  shown 
by  a  reference  in  the  Anglo-Saxon  laws  to  the  conjurators 
of  an  accused  party  being  outsworn  (overcythed),  when 
recourse  was  likewise  had  to  the  ordeal.3  As  regards  the 
church,  although  the  authoritative  use  of  Compurgation 
among  ecclesiastics  would  seem  to  demand  for  it  among 
them  implicit  faith  in  its  results,  3-et  we  have  already 
seen  that  in  the  ninth  century,  Hincmar  did  not  hesitate 
to  require  that  in  certain  cases  it  should  be  continued 
by  the  ordeal;  and  two  centuries  later,  a  remark  of  Ivo 

1  Credo  Norigaudum  istum  Eduensem  episcopum  vera  jurasse,  sicut  me 
Deus  adjuvet. — Hugo,  Flaviniac.  Lib.  n. 
-  L.  Frisionum  Tit.  xiv. 
*  Dooms  of  King  Edward,,  cap.  iii. 


46  THE    WAGER    OF    LAW. 

of  Chartres  implies  a  strong  degree  of  doubt  as  to  its 
efficacy.  In  relating  that  Sanctio,  Bishop  elect  of  Orleans, 
when  accused  of  simony  by  a  disappointed  rival,  took  the 
oath  of  negation  with  seven  compurgators,  he  adds  that 
the  accused  thus  cleared  himself  as  far  as  he  could  in 
the  eyes  of  man.1  That  the  advantages  it  offered  to  the 
accused  were  duly  appreciated,  both  by  criminals  and 
judges,  is  evident  from  the  case  of  Manasses,  Archbishop 
of  Rheims.  Charged  with  simony  and  other  offences,  after 
numerous  tergiversations  he  was  finally  summoned  for 
trial  before  the  Council  of  Lyons,  in  1080.  As  a  last  effort 
to  escape  the  impending  doom,  he  secretly  offered  to  Bishop 
Hugh,  the  Papal  legate,  the  enormous  sum  of  two  hundred 
ounces  of  gold  and  other  presents  in  hand,  besides  equally 
liberal  prospective  payments,  if  he  could  obtain  the  privi- 
lege of  compurgation  with  six  suffragan  bishops.  Gregory 
VII.  was  then  waging  too  uncompromising  a  war  with  the 
corroding  abuse  of  simony  for  his  lieutenant  to  yield  to 
any  bribe,  however  dazzling;  the  proffer  was  spurned, 
Manasses  confessed  his  guilt  by  absence,  and  was  accord- 
ingly deposed.3 

The  comparative  value  attached  to  the  oaths  of  conjura- 
tors  is  illustrated  by  the  provisions  which  are  occasionally 
met  with,  regulating  the  cases  in  which  they  were  employed 
in  default  of  witnesses,  or  in  opposition  to  them.  Thus, 
in  the  Baioarian  law,  the  oath  of  one  competent  witness  is 
considered  to  outweigh  those  of  six  conjurators  f  and 
among  the  Lombards,  an  accusation  of  murder  which  could 
be  met  with  three  witnesses  required  twelve  conjurators  as 
a  substitute.4 

It  is  thus  evident  that  conjurators  were  in  no  sense  wit- 
nesses, that  they  were  not  expected  to  give  testimony,  and 
that  they  merely  expressed  their  confidence  in  the  veracity 

1  Quantum  in  conspectu  hominum  purgari  poterat. — Ivon.  Epist.  liv. 

s  Hugo.  Flaviniac.  Lib.  II.  3  L.  Baioar.  Tit.  xiv.  cap   i.  §  2. 

4  L.  Longobnrd.  Lib.  t.  Tit.  is.  §  37. 


LIABILITY    OF    CONJURATORS.  47 

of  their  principal.  It  therefore  al  first  sight  appears  some- 
what  unreasonable  that  they  should  have  been  held  guilty 
of  perjury  and  subject  to  its  penalties  in  case  <>f  unluckily 
sustaining  the  irrong  side  of  :i  cause.  It  is  probably  ow- 
ing to  this  inconsistency  that  sonic  writers  have  denied 
that  they  were  involved  in  the  guilt  of  their  principal,  and 
among  others  the  learned  Meyer  has  fallen  into  this  error.1 
The  proof,  however,  is  too  clear  for  dispute.  We  have 
already  seen  that  the  oath  was  an  unqualified  assertion  of 
the  justice  of  the  side  espoused,  without  reservation  that 
would  enable  the  compurgator  to  escape  the  charge  of 
false  swearing,  and  one  or  two  allusions  have  been  made 
to  the  punishments  inflicted  on  them  when  subsequently 
convicted  of  mistake.  The  code  of  the  Alamanni  recog- 
nized the  guilt  involved  in  such  cases  when  it  denied  the 
privilege  of  compurgation  to  any  one  who  had  previously 
been  more  than  once  convicted  of  crime,  giving  as  a  reason 
the  desire  to  save  innocent  persons  from  incurring  the  sin 
of  perjur3T.3  Similar  evidence  is  derived  from  a  regulation 
promulgated  by  King  Luitprand  in  the  Lombard  law,  by 
which  a  man  nominated  as  a  conjurator,  and  declining  to 
serve,  was  obliged  to  swear  that  he  dared  not  take  the  oath 
for  fear  of  his  soul.3  A  case  in  point  occurs  in  the  life  of 
St.  Boniface,  whose  fellow-laborer  Adalger  left  his  property 
to  the  church.  His  graceless  brothers  disputed  the  bequest, 
and  offered  to  make  good  their  claim  to  the  estate  by  the 
requisite  number  of  oaths.  The  holy  man  ordered  them 
to  swear  alone,  in  order  not  to  be  concerned  in  the  destruc- 
tion of  their  conjurators,  and  on  their  unsupported  oaths 
gave  up  the  property.4 

1  Institutions  Judiciaires,  I.  317  (Pardessus). 

"2  Ut  propter  suam  nequitiam  alii  qui  volunt  Dei  esse  non  se  perjurent, 
nee  propter  culpam  alienam  semetipsos  perdant. — L.  Alaman.  Tit.  xlii.  §  1. 

3  Quod  pro  aniraa  sua  timendo,  non  praesumat  sacramentalis  esse. — L. 
Longobard.  Lib.  II.  Tit.  Iv.  §  14. 

4  Othlon.  Vit.  S.  Bonif.  Lib.  II.  c.  xxi. — "  Vos  soli  juratis,  si  vultis:  nolo 
ut  omnes  hos  congregatos  perdatis." — Boniface,  however,  did  not  weakly 


48  THE    WAGER    OF    LAW. 

The  law  had  no  hesitation  in  visiting  such  cases  with 
the  penalties  reserved  for  perjury.  B3'  the  Salique  code 
unlucky  compurgators  were  heavily  fined.1  Among  the 
Frisians,  they  had  to  buy  themselves  off  from  punishment 
"by  the  amount  of  their  wehrgild — the  value  set  upon  their 
heads.9  A  slight  relaxation  of  this  severity  is  manifested 
in  a  constitution  of  Pepin,  King  of  Italy,  by  which  they 
were  punished  with  the  loss  of  a  hand — the  immemorial 
penalty  of  perjury — unless  they  could  establish,  by  under- 
going the  ordeal,  that  they  had  taken  the  oath  in  ignorance 
of  the  facts.3  This  regulation  is  a  tacit  disavowal  of  the 
fundamental  idea  upon  which  the  whole  system  was  erected, 
but  it  was  only  a  temporary  edict,  and  had  no  permanent 
effect.  Even  as  late  as  the  close  of  the  twelfth  century,  we 
find  Celestin  III.  ordering  the  employment  of  conjurators 
in  a  class  of  cases  about  the  facts  of  which  they  could  not 
possibly  know  anything,  and  decreeing  that  if  the  event 
proved  them  to  be  in  error,  they  were  to  be  punished  for 
perjury.*  That  such  liability  was  fully  recognized  at  this 
period  is  shown  by  the  argument  of  Aliprandus  of  Milan, 
a  celebrated  contemporary  legist,  who,  in  maintaining  the 
position  that  an  ordinary  witness  committing  perjury  must 
always  lose  his  hand,  without  the  privilege  of  redeeming 
it,  adds  that  no  witness  can  perjure  himself  unintentionally ; 
but  that  conjurators  may  do  so  either  knowingly  or  un- 
knowingly, that  they  are  therefore  entitled  to  the  benefit 
of  the  doubt,  and  if  not  wittingly  guilty,  they  should  have 
the  privilege  of  redeeming  their  hands.5 

abandon  the  cause  of  the  church.  He  freely  invoked  curses  on  the  greedy 
brethren,  which  being  fulfilled  on  the  elder,  the  terror-stricken  survivor 
gladly  relinquished  the  dangerous  inheritance. 

1  L.  Salic.  Tit.  1.  §§  3,  4. 

3  L.  Frisionum  Tit.  x. 

3  Capit.  Pippini  ann.  793,  §  15. — Capit.  Car.  Mag.  incert.  anni  c.  x.  (Hartz- 
heimConcil.  German.  I.  426.) 

4  Celest.  III.  ad  Brugnam  Episc.  (Baluz.  et  Mansi,  III.  382.) 

6  Cod.  Vatican.  No.  3845,  Gloss,  ad  L.  2  Lombard,  ii.  51,  apud  Savigny, 


SAFEGUARDS    OF    THE    SYSTEM  49 

All  this  seems  in  the  highest  degree  i national,  yet  in 
criticizing  the  hardships  to  which  innocent  conjurators 
were  thus  exposed,  it  should  be  borne  in  mind  that  the 
whole  system  was  a  solecism.  In  its  origin,  it  was  sim- 
ply summoning  the  kinsmen  together  to  bear  the  brunt  of 
the  court,  as  they  were  bound  to  do  that  of  battle ;  and 
as  they  were  liable  for  a  portion  of  the  fine  which  was  the 
penalty  of  all  crimes — personal  punishments  for  freemen 
being  unknown — they  could  well  afford  to  incur  the  risk  of 
paying  for  perjury  in  order  to  avoid  the  assessment  to  be 
levied  upon  them  in  case  of  the  conviction  of  their  relative. 
In  subsequent  periods,  when  this  family  responsibility  be- 
came weakened  or  disused,  and  the  progress  of  civilization 
rendered  the  interests  of  society  more  complex,  the  custom 
could  only  be  retained  by  rendering  the  office  one  not  to  be 
lightly  undertaken.  A  man  who  was  endeavoring  to  defend 
himself  from  a  probable  charge  of  murder,  or  who  desired 
to  confirm  his  possession  of  an  estate  against  a  competitor 
with  a  fair  show  of  title,  was  expected  to  produce  guaranties 
that  would  carry  conviction  to  the  minds  of  impartial  men. 
As  long  as  the  practice  existed,  it  was  therefore  necessary 
to  invest  it  with  every  solemnity,  and  to  guard  it  with 
penalties  that  would  obviate  some  of  its  disadvantages. 

Accordingly,  we  find  that  it  was  not  always  a  matter  of 
course  for  a  man  to  clear  himself  in  this  manner.  The 
ancient  codes  have  frequent  provisions  for  the  fine  incurred 
by  those  unable  to  procure  the  requisite  number  of  com- 
purgators, showing  that  it  was  an  occurrence  constantly 
kept  in  mind  by  legislators.  Nor  was  it  only  landless  and 
friendless  men  who  were  exposed  to  such  failures.  In  794, 
a  certain  Bishop  Peter  was  condemned  by  the  Synod  of 
Frankfort  to  clear  himself,  with  two  or  three  conjurators,  of 
the  suspicion  of  being  involved  in  a  conspiracy  against 

Geschichte  d.  Rom.  Recht.  B.  iv. — I  owe  this  reference  to  the  kindness  of 
my  friend  J.  G.  Rosengarten,  Esq. 

5 


50  THE    WAGER    OF    LAW. 

Charlemagne,  and,  small  as  was  the  number,  he  was  unable 
to  procure  them.1  So,  in  the  year  1100,  when  the  canons 
of  Autun,  at  the  Council  of  Poitiers,  accused  their  bishop, 
Norgaud,  of  simony  and  other  irregular  practices,  and  he 
proposed  to  absolve  himself  with  the  compurgatorial  oaths 
of  the  Archbishop  of  Tours  and  the  Bishop  of  Redon,  the 
canons  went  privately  to  those  prelates  and  threatened 
that  in  such  event  they  would  bring  an  accusation  of  per- 
jury and  prove  it  by  the  ordeal  of  fire,  whereupon  the 
would-be  conjurators  wisely  abandoned  their  intention,  and 
Norgaud  was  suspended.2  The  most  rigid  compliance  with 
the  requisitions  of  the  law  was  exacted.  Thus  the  laws  of 
Nieuport,  in  1163,  provide  a  heavy  penalty,  and,  in  addi- 
tion, pronounce  condemnation  when  a  single  one  of  the 
conjurators  declines  the  oath.3 

No  regulations,  however,  could  be  more  than  a  slight 
palliation  of  a  system  so  vicious  in  its  fundamental  prin- 
ciples, and  efforts  were  made  for  its  abrogation  or  limitation 
at  a  comparatively  early  period.  In  983,  a  constitution  of 
Otho  II.  abolished  it  in  cases  of  contested  estates,  and 
substituted  the  wager  of  battle,  on  account  of  the  enormous 
perjury  which  it  occasioned.4  In  England,  a  more  sweeping 
denunciation,  declaring  its  abolition  and  replacing  it  with 
the  vulgar  ordeal,  is  found  in  the  confused  and  contradic- 
tory compilation  known  as  the  laws  of  Henry  I.5 

f 

1  Capit.  Car.  Mag.  ann.  794  §  7. 

3  Hugo.  Flaviniac.  Lib.  II.  ann.  1100.  Norgaud,  however,  was  reinstated 
next  year  by  quietly  procuring,  as  we  have  already  seen,  two  brother  prelates 
to  take  the  oath  with  him,  in  the  absence  of  his  antagonists. 

a  Et  si  quis  de  quinque  juvantibus  defecerit,  accusatus  debet  tres  libras, 
et  percusso  decern  solidos. — Leg.  Secund.  Noviportus  (Oudegherst). 

4  L.  Longobard.  Lib.  II.  Tit.  lv.  §  34. — Qua  ex  re  mos  detestabilis  in 
Italia,  improbusque  non  imitandus  inolevit,  ut  sub  legum  specie  jurejurando 
acquireret,  qui  Deum  non  timendo  minime  formidaret  perjurare. 

8  L.  Henrici  I.  cap.  lxiv.  §  1.  "  Malorum  autem  infestacionibus  et  perju- 
rancium  conspiracione,  depositum  est  frangens  jurainentum,  ut  inagis  Dei 
judicium  ab  accusatis  eligatur;  et  unde  accusatus  cum  una  decima  se  pur- 


CONTINUED    POIMLAR    CONFIDENCE.  51 

We  have  already  seen,  from  inataneei  of  later  date,  how 
little  influence  Iheee  efforts  had  in  eradicating  a  custom 
so  deeply  rooted  in  the  ancestral  prejudices  of  nil  the  Euro- 
pean races.    The  hold  which  it  continued  to  enjov  on  the 

popular  confidence  is  well  illustrated  in  a  little  ballad  l>y 
Audefroi-le-Batard,   a  renowned  trouvere  of  the  twelfth 

century. 

LA  BELLE  EREMBORS.' 

"  Quand  vient  en  mai,  que  Ton  dit  as  Ions  jors,"  etc. 

In  the  long  bright  days  of  spring-time, 

In  the  month  of  blooming  May, 
The  Franks  from  royal  council-field 

All  homeward  wend  their  way. 
Rinaldo  leads  them  onward 

Past  Erembors'  gray  tower, 
But  turns  away,  nor  deigns  to  look 

Up  to  the  maiden's  bower. 

Ah,  dear  Rinaldo ! 

Full  in  her  turret  window 

Fair  Erembors  is  sitting, 
The  lovelorn  tales  of  knights  and  dames 

In  many  a  color  knitting. 
She  sees  the  Franks  pass  onward, 

Rinaldo  at  their  head, 
And  fain  would  clear  the  slanderous  tale 

That  evil  tongues  have  spread. 

Ah,  dear  Rinaldo ! 

"  Sir  knight,  I  well  remember 

When  you  had  grieved  to  see 
The  castle  of  old  Erembors 

Without  a  smile  from  me." 

garet  per  eleccionem  et  sortem,  si  ad  judicium  ferri  calidi  vadat."  This  can- 
not be  considered,  however,  as  having  abrogated  it  even  temporarily  in  Eng- 
land, since  it  is  contradicted  by  many  other  laws  in  the  same  code,  which 
prescribe  the  use  of  compurgators. 

1  Le  Roux  de  Lincy,  Chants  Historiques  Francois,  I.  15. 


52  THE    WAGER    OF    LAW. 

"Your  vows  are  broken,  princes3, 

Your  faith  is  light  as  air, 
Your  love  another's,  and  of  mine 

You  have  nor  reck  nor  care." 

Ah,  dear  Rinaldo ! 

"  Sir  knight,  my  faith  unbroken, 

On  relics  I  will  swear ; 
A  hundred  maids  and  thirty  dames 

With  me  the  oath  shall  share. 
I  've  never  loved  another, 

From  stain  my  vows  are  free. 
If  this  content  your  doubts  and  fears, 

You  shall  have  kisses  three." 

Ah,  dear  Rinaldo ! 

Rinaldo  mounts  the  staircase, 

A  goodly  knight,  I  ween, 
With  shoulders  broad,  and  slender  waist, 

Fair  hair  and  blue  eyes  keen. 
Earth  holds  no  youth  more  gifted 

In  every  knightly  measure  ; 
When  Erembors  beholds  him, 

She  weeps  with  very  pleasure. 

Ah,  dear  Rinaldo ! 

Rinaldo  in  the  turret 

Upon  a  couch  reposes, 
Where  deftly  limned  are  mimic  wreaths 

Of  violets  and  of  roses. 
Fair  Erembors  beside  him 

Sits  clasped  in  loving  hold, 
And  in  their  eyes  and  lips  they  find 

The  love  they  vowed  of  old  ! 

Ah,  dear  Rinaldo  ! 

In  England,  owing  probably  to  the  influence  of  the  jury- 
trial,  the  custom  seems  to  have  lost  its  importance  earlier 
than  elsewhere.  Towards  the  close  of  the  twelfth  century, 
Glanville  compiled  his  excellent  little  treatise  "  De  legibus 
Angliae,"  the  first  satisfactory  body  of  legal  procedure 
which  the  history  of  mediaeval  jurisprudence  affords.  Com- 


ENGLAND.  53 

pletc  as  this  is  in  nil  the  Conns  of  pTOaeOlltioil  :ui<l  defence, 
the  allusions  to  conjuratnis  are  SO  Blight  as  lo  show  thai, 
already  they  constituted  an  Infinitesimal  part  of  legal 
machinery,  and  that  they  were  employed  rather  on  collat- 
eral points  than  on  main  questions.  Thus  a  defendant  who 
desired  to  deny  the  serving  of  a  writ  could  swear  to  its  non- 
reccption  with  twelve  conjurators ;l  and  a  party  to  a  suit, 
who  had  made  an  unfortunate  statement  or  admission  in 
court,  could  deny  it  by  bringing  forward  two  to  swear  with 
him  against  the  united  recollections  and  records  of  the 
whole  court.8  The  custom,  however,  still  continued  in  use. 
In  1194,  when  Richard  I.  undertook,  after  his  liberation,  to 
bring  about  a  reconciliation  between  his  chancellor,  William 
Bishop  of  E1}T,  and  the  Archbishop  of  York,  one  of  the  con- 
ditions was  that  the  chancellor  should  swear  with  a  hundred 
priestly  compurgators  that  he  had  neither  caused  nor  de- 
sired the  arrest  of  the  archbishop.3  In  the  next  century, 
Practon  alludes  to  the  employment  of  conjurators  in  cases 
of  disputed  feudal  service  between  a  lord  and  his  vassal. 
wherein  the  utmost  exactness  was  rigidly  required  both  as 

1  Glanville,  Lib.  i.  cap.  ix.  Also,  Lib.  i.  c.  xvi.,  Lib.  ix.  c.  i.,  Lib.  x. 
c.  v. 

3  "  Inaliisenimcuriissiquis  aliquiddixeritundeeumpocnituerit,  poterit  id 
negare  contra  totam  curiam  tertia  manu  cum  sacramento,  id  se  non  dixisse 
affirmando." — (Ibid.  Lib.  vm.  c.  ix.) — In  some  other  systems  of  jurispru- 
dence, this  unsophisticated  mode  of  avoiding  justice  was  obtained  by  insist- 
ing on  the  employment  of  lawyers,  whose  assertions  would  not  be  binding 
on  their  clients.  Thus  in  the  Assises  de  Jerusalem  (Baisse  Court,  cap.  133): 
"  Et  porce  il  deit  estre  lavantparlier,  car  se  lavantparlier  dit  parole  quil  ne 
doit  dire  por  celuy  ci  cui  il  parole,  celui  por  qui  il  parle  et  son  conceau  y 
pueent  bien  amender  ains  que  le  iugement  soit  dit.  Mais  se  celuy  de  cui 
est  li  plais  diseit  parole  qui  li  deust  torner  a  damage,  il  ne  la  puest  torner 
arieres  puis  quil  la  dite."  The  same  caution  is  recommended  in  the  German 
procedure  of  the  fourteenth  century — "verbis  procuratoris  non  eris  adstric- 
tns,  et  sic  vitabis  damnum." — (Richstich  Landrecht,  cap.  n.)  The  same 
abuse  existed  in  France,  but  was  restricted  by  St.  Louis,  who  made  the  as- 
pertion  of  the  advocate  binding  on  the  principal,  unless  contradicted  on  the 
spot. — (Etablissements,  Liv.  If.  chap,  xiv.) 

3  Roger  de  Hoveden,  ann.  1194. 

5* 


54  THE    WAGER    OP    LAW. 

to  the  number  and  fitness  of  the  conjurators,'  and  we  shall 
see  that  no  formal  abrogation  of  it  took  place  until  the  nine- 
teenth century. 

Soon  after  the  time  of  Glanville,  however,  the  system  re- 
ceived a  severe  shock  from  its  most  important  patron,  the 
church.  As  stated  above,  in  proceedings  between  ecclesias- 
tics, it  was  everywhere  received  as  the  appropriate  mode  of 
deciding  doubtful  cases.  Innocent  III.  himself,  who  did  so 
much  to  abrogate  the  kindred  absurdity  of  the  ordeal,  con- 
tinued to  prescribe  its  use  in  cases  of  the  highest  moment 
involving  dignitaries  of  lofty  station ;  though,  sensible  of  the 
abuses  to  which  it  led,  he  was  careful  in  demanding  conjura- 
tors of  good  character,  whose  intimacy  with  the  accused 
would  give  weight  to  their  oaths.3  At  the  same  time,  in 
endeavoring  to  remove  one  of  the  objections  to  its  use,  he 
in  reality  destroyed  one  of  its  principal  titles  to  respect. 
He  decreed  that  compurgators  should  only  be  obliged  to 
swear  to  their  belief  in  the  truth  of  their  principal's  oath,3 
and  thus  he  attacked  the  very  foundation  of  the  practice, 
and  gave  a  powerful  impulse  to  the  tendency  of  the  times  no 
longer  to  consider  the  compurgator  as  sharing  the  guilt  or 
innocence  of  the  accused.  Such  an  innovation  could  only 
be  regarded  as  withdrawing  the  guarantee  which  had  imme- 
morially  existed.  To  recognize  it  as  a  legal  precept  was  to 
deprive  the  proceeding  of  its  solemnity  and  to  render  it  no 
longer  a  security  worthy  the  confidence  of  the  people  or 
sufficient  to  occupy  the  attention  of  a  court  of  justice. 

1  Tunc  vadabit  defendens  legem  se  duodecima  manu. — Bracton.  Lib. 
in.  Tract,  iii.  cap.  37  §  1. — Et  si  ad  diem  legis  faciendae  defuerit  aliquis  de 
XII.  vel  si  contra  praedictos  excipi  possit  quod  non  sunt  idonei  ad  legem 
faciendam,  eo  quod  villani  sunt  vel  alias  idonei  minus,  tunc  dominus  incidet 
in  misericordiam. — Ibid.  §  3.     So  also  in  Lib.  v.    Tract,  v.   cap.  xiii.   §  3. 

3  Can.  vii.  Extra,  v.  34. 

3  Illi  qui  ad  purgandam  alicujus  infamiam  inducuntur,  ad  solum  tenentur 
juramento  firmare  quod  veritatem  credunt  eum  dicere  qui  purgatur. — Can. 
xiii.  Extra,  v.  34.  Innocent  also  endeavored  to  put  an  end  to  the  abuse 
by  which  ecclesiastics,  notoriously  guilty,  were  able  to  escape  the  penalty 
due  their  crimes,  by  this  easy  mode  of  purgation.— Can.  xv.  eod.  loc. 


INFLUENCE    OP    ROMAN    LAW.  55 

Tn  the  confusion  arising  from  the  long  and  varying  con- 
test as  to  the  boundaries  of  civil  :m<!  ecclesiastical  Juris- 
diction, it  is  not  easy  to  determine  the  Sxaci  authority 
which  this  decretal  may  have  exercised  directly  in  secular 
jurisprudence.  We  have  seen  above  that  the  ancient  form 
of  absolute  oath  was  still  employed  without  change,  until 
long  niter  this  period,  but  the  moral  effect  of  so  decided  a 
declaration  from  the  head  of  the  Christian  church  could  not 
but  be  great.  Another  influence,  not  less  potential,  was  also 
at  work.  The  revival  of  the  study  of  the  Roman  juris- 
prudence, dating  from  about  the  middle  of  the  twelfth  cen- 
tury, soon  began  to  exhibit  the  results  which  were  to  work 
so  profound  a  change  in  the  legal  maxims  and  principles 
of  half  of  Europe.1  The  criminal  procedure  of  the  barba- 
rians had  rested  to  a  great  degree  on  the  system  of  negative 
proofs.  In  the  absence  of  positive  evidence  of  guilt,  and 
sometimes  in  despite  of  it,  the  accused  was  bound  to  clear 
himself  by  compurgation  or  by  the  ordeal.  The  cooler  and 
less  impassioned  justice  of  the  Roman  law  saw  clearly  the 

1  The  rapidity  with  which  the  study  of  the  civil  law  diffused  itself  through- 
out the  schools  and  the  eagerness  with  which  it  was  welcomed  are  well  illus- 
trated by  the  complaints  of  Giraldus  Cambrensis  before  the  end  of  the  twelfth 
century.  The  highest  of  high  churchmen,  in  deploring  the  decline  of  learn- 
ing among  the  prelates  and  clergy  of  his  age,  he  attributes  it  to  the  exclusive 
attention  bestowed  on  the  jurisprudence  of  Justinian,  which  already  offered 
the  surest  prizes  to  cupidity  and  ambition,  and  he  quotes  in  support  of  his 
opinion  the  dictum  of  his  teacher  Mainier,  a  professor  in  the  University  of 
Paris  :  M  Episcopus  autem  ille,  de  quo  nunc  ultimo  locuti  sumus,  inter  super- 
ficiales  numerari  potuit,  cujusmodi  hodie  multos  novimus  propter  leges  Jus- 
tinianas,  qua;  literaturam,  urgente  cupiditatis  et  ambitionis  incommodo, 
adeo  in  multis  jam  suffocarunt,  quod  magistrum  Mainerium  in  auditorio 
scholae  suae  Parisius  dicentem  et  damna  sui  temporis  plangentem,  audivi, 
vatieinium  illud  Sibillae  vere  nostris  diebus  esse  completum,  hoc  scilicet 
'Venient  dies,  et  vae  illis,  quibus  leges  obliterabunt  scientiam  literarum.'  " 
(Gemm.  Ecclesiast.  Dist.  II.  cap.  xxxvii.)  This,  like  all  other  branches  of 
.  learning,  was  as  yet  almost  exclusively  in  the  hands  of  the  clergy,  though 
already  were  arising  ihe  precursors  of  those  subtle  and  daring  civil  lawyers 
who  were  destined  to  do  such  yeoman's  service  in  abating  the  pretensions  of 
the  church. 


56  THE    WAGER    OF    LAW. 

futility  of  such  attempts,  and  its  system  was  based  on  the 
indisputable  maxim  that  it  is  morally  impossible  to  prove 
a  negative — unless  indeed  that  negative  should  chance  to 
be  incompatible  with  some  affirmative  susceptible  of  evi- 
dence— and  thus  the  onus  of  proof  was  thrown  upon  the 
accuser.1  The  enthusiastic  worshippers  of  the  Pandects  were 
not  long  in  recognizing  the  truth  of  this  principle,  and  in 
proclaiming  it  far  and  wide.  The  Spanish  code  of  Alphonso 
the  Wise,  in  the  middle  of  the  thirteenth  century,"  asserts 
it  in  almost  the  same  words  as  the  Roman  jurisconsult.3 
Not  long  before,  the  Assises  de  Jerusalem  had  unequivo- 
cally declared  that  "nul  ne  peut  faire  preuve  de  non ;"  and 
Beaumanoir,  in  the  "Coutumes  du  Beauvoisis,"  approv- 
ingly quotes  the  assertion  of  the  civil  doctors  to  the  same 
effect,  "  Li  clerc  si  dient  et  il  dient  voir,  que  negative  ne 
doit  pas  quevir  en  proeve." 

Abstract  principles,  however,  though  freely  admitted, 
were  not  yet  powerful  enough  to  eradicate  traditional  cus- 
toms rooted  deeply  in  the  feelings  and  prejudices  of  the 
age.  The  three  bodies  of  law  just  cited  contradict  their 
own  admissions,  in  retaining  almost  unchecked  the  most 
monstrous  of  negative  proofs — the  ordeal  of  battle — and  the 
introduction  of  torture  soon  after  exposed  the  accused  to 
the  chances  of  the  negative  system  in  its  most  atrocious 
form.  Still  these  codes  show  a  marked  progress  as  relates 
to  the  kindred  procedure  of  compurgation.  The  Partidas, 
promulgated  about  1262,  is  of  comparative  unimportance 
as  an  historical  document,  since  it  was  of  but  uncertain 
authority,  and  rather  records  the  convictions  of  an  enlight- 

1  Actor  quod  adseverat,  probare  se  non  posse  profitendo,  reum  necessitate 
monstrandi  contrarium  non  adstringit :  cum  per  rerum  naturam  factum  ne- 
gantis  probatio  nulla  sit.  (Const,  xxii.  C.  de  Probat.  iv.  19.) — Cum  inter  eum, 
qui  factum  adseverans,  onus  subit  probationis,  et  negantem  numerationem, 
cujus  naturali  ratione  probatio  nulla  est .  .  .  magna  sit  differentia.  (Const. 
x.  C.  de  non  numerat.  iv.  30.) 

2  La  cosa  que  non  es  non  se  puede  probar  nin  mostrar  segunt  natura. — Las 
Siete  Partidas,  P.  in.  Tit.  xiv.  1.  1. 


THE     THIRTEENTH     0ENT1KY.  51 

ened  ruler  as  to  what  should  be  law  than  the  existing  insti- 
tutions of  a  people.  The  absence  of  compurgation  in  Spain, 
moreover,  was  a  direct  legacy  from  the  Wisigothic  code, 
transmitted  in  regular  descent  through  the  Fuero  Juzgo. 
The  Assises  de  Jerusalem  is  a  more  precious  relic  of  rae- 
dia'val  jurisprudence.  Constructed  as  a  code  for  the  gov- 
ernment of  the  Latin  kingdoms  of  the  East,  in  1099,  by  order 
of  Godfrey  of  Bouillon,  it  has  reached  us  only  in  the  form 
assumed  about  the  period  under  consideration,  and  as  it 
presents  the  combined  experience  of  the  warriors  of  many 
Western  races,  its  silence  on  the  subject  of  conjurators  is 
not  a  little  significant.  The  work  of  Beaumanoir,  written 
in  1283,  is  not  only  the  most  perfect  embodiment  of  the 
jurisprudence  of  his  time,  but  is  peculiarly  interesting  as  a 
landmark  in  the  struggle  between  the  waning  power  of 
feudalism  and  the  Roman  theories  which  gave  vigor  and 
intensity  of  purpose  to  the  enlightened  centralization  aimed 
at  by  St.  Louis ;  and  Beaumanoir  likewise  passes  in  silence 
over  the  practice  of  compurgation,  as  though  it  were  no 
longer  an  existing  institution.  All  these  legislators  and 
lawyers  had  been  preceded  by  the  Emperor  Frederick  II., 
who,  in  1231,  promulgated  his  "  Constitutiones  Sicularum" 
for  the  government  of  his  Neapolitan  provinces.  Frederick 
was  Latin,  and  not  Teutonic,  both  by  education  and  predi- 
lection, and  his  system  of  jurisprudence  is  greatly  in  ad- 
vance of  all  that  had  preceded  it.  That  conjurators  should 
find  no  place  in  his  scheme  of  legal  procedure  is,  therefore, 
only  wrhat  might  be  expected.  The  collection  of  laws  knowni 
as  the  "Etablissements"  of  St.  Louis  is  by  no  means  a 
complete  code,  but  it  is  sufficiently  copious  to  render  the 
absence  of  all  allusion  to  compurgation  significant.  In 
fact,  the  numerous  references  to  the  Digest  show  how  strong 
was  the  desire  to  substitute  the  Roman  for  the  customary 
law,  and  the  efforts  of  the  king  to  do  away  with  all  negative 
proofs  of  course  included  the  one  under  consideration. 
The  same  may  be  said  of  the  "  Livres  de  Jostice  et  de  Plet" 


58  THE    WAGER    OF    LAW. 

and  the  "Conseil"  of  Pierre  de  Fontaines,  two  unofficial 
books  of  practice,  which  represent  with  tolerable  fulness 
the  procedures  in  vogue  during  the  latter  half  of  the  thir- 
teenth century;  while  the  "Olim,"  or  records  of  the  Parle- 
ment  of  Paris,  the  king's  high  court  of  justice,  show  that 
the  same  principles  were  kept  in  view  in  the  long  struggle 
by  which  that  body  succeeded  in  extending  the  royal  juris- 
diction at  the  expense  of  the  independence  of  the  vainly 
resisting  feudatories.1 

All  these  were  the  works  of  men  deeply  imbued  with  the 
spirit  of  the  resuscitated  jurisconsults  of  Rome.  Their 
labors  bear  testimony  rather  to  the  influences  at  work  to 
overthrow  the  institutions  bequeathed  by  the  barbarians  to 
the  Middle  Ages,  than  to  a  general  acceptance  of  the  innova- 
tions attempted.  Their  authority  was  still  circumscribed 
by  the  innumerable  jurisdictions  which  yet  defied  their 
gradual  encroachments,  and  which  resolutely  maintained 
ancestral  customs.  Even  an  occasional  instance  may  be 
found  where  the  central  power  itself  permitted  the  use  of 
compurgation,  showing  how  difficult  it  was  to  eradicate 
the  prejudices  transmitted  through  ages  from  father  to  son, 

1  In  the  "  Olim,"  or  records  of  the  Parlement  of  Paris  from  1254  to  1318, 
I  can  find  but  two  instances  in  which  compurgation  was  required — one  in 
1279  at  Noyon,  and  one  in  1284  at  Compiegne.  As  innumerable  decisions  are 
given  of  cases  in  which  its  employment  would  have  been  equally  appropriate, 
these  two  can  only  be  regarded  as  exceptional,  and  the  inference  is  fair  that 
some  local  custom  rendered  it  impossible  to  refuse  the  privilege  on  these 
special  occasions.     (Olim,  II.  153,  237.)  ^k 

A  noteworthy  instance  of  its  employment  occurred  in  1234  at  the  Diet  of 
Frankfort,  in  the  presence  of  Henry  VII.,  son  of  that  Frederick  II.  whom 
we  have  seen  discountenance  its  use  in  his  Neapolitan  laws.  When  the  fear- 
ful persecutions  instigated  by  the  grand  inquisitor,  Conrad  of  Marburg,  drew 
to  a  close,  the  last  of  his  intended  victims,  the  Counts  of  Seyne  and  Solms, 
cleared  themselves  before  the  king  of  the  charge  of  heresy  with  compurga- 
torial  oaths  in  which  each  was  supported  by  eight  bishops,  twelve  Cistercian 
abbots,  twelve  Franciscan  and  three  Dominican  friars,  and  a  large  number 
of  Benedictine  abbots,  clerks,  and  noble  laymen.  (Hartzheim  Concil.  Ger- 
man. III.  549.) 


THE  FOURTEENTH  CENTURY.  59 

and  that  the  policy  adopted  by  St.  Louis  and  Philippe-Ie- 
Ih'1.  aided  by  the  shrewd  and  energetic  civil  lawyers  who 
assisted  them  so  ably,  was  aot  in  all  cases  adhered  to. 

Thus,  in  1303,  B  powerful  noble  of  the  court  of  I'liilippe-le- 
Bel  was  accused  of  a  foul  and  treacherous  murder,  which  a 
brother  of  the  victim  ottered  to  prove  by  the  wager  of  battle 
Philippe  was  endeavoring  to  abolish  the  judicial  duel,  and 
the  accused  desired  strongly  to  escape  the  ordeal,  lie  was 
accordingly  condemned  to  clear  himself  of  the  imputed 
crime,  by  a  purgatorial  oath  with  ninety-nine  nobles,  and 
at  the  same  time  to  satisfy  the  fraternal  claim  of  vengeance 
with  an  enormous  fine1 — a  decision  which  offers  the  best 
practical  commentary  on  the  degree  of  faith  reposed  in  this 
system  of  purgation.  Even  the  Parlement  of  Paris  in  1353 
and  a  rescript  of  Charles-le-Sage  in  1357  allude  to  compur- 
gation as  still  in  use  and  of  binding  force.3 

It  was  in  the  provinces,  however,  that  the  system  mani- 
fested its  greatest  vitality,  protected  belli  by  the  stubborn 
dislike  to  innovation,  and  by  the  spirit  of  independence 
which  so  long  and  so  bitterly  resisted  the  centralizing 
efforts  of  the  crown.  The  Roman  law  concentrated  all 
power  in  the  person  of  the  sovereign,  and  reduced  his 
subjects  to  one  common  level  of  implicit  obedience.  The 
genius  of  the  barbaric  institutions  and  of  feudalism  local- 
ized power.  The  principles  were  essentially  oppugnant, 
and  the  contest  between  them  was  prolonged  and  confused, 
for  neither  party  could  in  all  cases  recognize  the  ultimate 
result  of  the  minuter  points  involved,  though  each  was 
fully  alive  to  the  broad  issue  of  the  struggle. 

How  obstinate  was  the  attachment  to  bygone  forms 
may  be  understood,  when  we  see  even  the  comparatively 

1  Statuunt  .  .  .  pe  manu  centesima  nobilium  se  purgare,  et  ad  haec  bene- 
Pfcto  juveni  bis  septem  librarum  milia  pro  sui  rancoris  satisfactione  pree- 
sentare. — Wilelmi  Egmond.  Chron. 

3  Is  qui  reus  putatur  tertia  manu  se  purgablt,  inter  quos  sint  duo  qui 
dicentur  denominate. — Du  Cange  s.  v.  Juramentum. 


60  THE    WAGER    OF    LAW. 

precocious  civilization  of  a  city  like  Lille  preserve  the 
compurgatorial  oath  as  a  regular  procedure  until  the  mid- 
dle of  the  fourteenth  century,  even  though  the  progress  of 
enlightenment  had  long  rendered  it  a  mere  formality,  with- 
out serious  meaning.  Until  the  year  1351,  the  defendant 
in  a  civil  suit  was  obliged  to  substantiate  the  oath  of  denial 
with  two  conjurators  of  the  same  sex,  who  swore  to  its 
truth,  with  some  slight  expression,  indeed,  of  reserve.1 
The  minutest  regulations  were  enforced  as  to  this  ceremony, 
the  position  of  every  finger  being  determined  by  law,  and 
though  it  was  the  veriest  formality,  serving  merely  as  an 
introduction  to  the  taking  of  testimony  and  the  legal  exa- 
mination of  the  case,3  yet  the  slightest  error  committed  by 
either  party  lost  him  the  case  irrecoverably.3 

Normandy  was  even  more  faithful  to  the  letter  of  the 
ancient  traditions.  The  Coutumier  in  use  until  the  revi- 
sion of  1583  under  Henry  III.  retains  a  remnant  of  the 
practice  under  the  name  of  desrene,  by  which,  in  questions 
of  little  moment,  a  man  could  rebut  an  accusation  with  two 
or  four  compurgators,  even  when  it  was  sustained  by  wit- 
nesses.    The  form  of  procedure  was  identical  with  that  of 

1  Et  li  deffendans,  sour  qui  on  a  clamet  se  doit  deffendre  par  lui  tierche 
main,  se  chou  est  hom  II.  hoinmes  et  lui,  se  chou  est  fame  II.  femmes  et  li 
a  tierche.  ..."  Tel  sierment  que  Jehans  chi  jura  boin  sierment  y  jura  au 
mien  ensient.  Si  m'ait  Dius  et  chist  Saint." — Roisin,  Franchises  etc.  de  la 
Ville  de  Lille,  pp.  30,  35. 

2  Ibid.  p.  51.  The  system  was  abrogated  by  a  municipal  ordinance  of 
September,  1351,  in  accordance  with  a  special  ordonnance  to  that  effect  issued 
by  King  John  of  France  in  March,  1350. 

3  The  royal  ordonnance  declares  that  the  oath  was  "en  Ian  gage  estraigne 
et  de  mos  divers  et  non  de  legier  a  retenir  ou  prononchier,"  and  yet  that  if 
either  party  "  par  quelconques  maniere  faloit  en  fourme  ou  en  langage  ou 
que  par  fragilite  de  langhe,  huirans  eu,  se  parolle  faulsist  ou  oubvliast,  ou 
eslevast  se  main  plus  que  li  dite  maniere  acoustumee  en  requeroit  ou  quelle 
ne  tenist  fermement  sen  poch  en  se  paulme  ou  ne  wardast  et  maintenist 
pluiseurs  autres  frivoles  et  vaines  chozes  et  manieres  appartenans  au  dit 
sierment,  selonc  le  loy  de  la  dite  ville,  tant  em  parole  comme  en  fait,  il  avoit 
du  tout  sa  cause  perdue,  ne  depuis  nestoit  rechus  sur  che  li  demanderes  a 
claim  ou  complainte,  ne  li  deffenderes  a  deffensce." — Ibid.  p.  390. 


B  £  A  It  N  —  SPAIN.  01 

old,  and  the  oath,  as  we  have  already  seen  (page  44),  was 
an  unqualified  assertion  of  the  truth  of  that  of  the  accused.1 
Practically,  however,  we  may  assume  that  the  custom  had 
long  grown  obsolete,  for  the  letters  patent  of  Henry  III., 

ordering  the  revision  in  1577,  expressly  state  that  the  pro- 
visions of  the  existing  laws  "estoient  la  pluspart  hors 
d'usage  et  pen  ou  point  entendu  des  habitants  du  pays;" 
and  that  compurgation  was  one  of  the  forgotten  formulas 
may  fairly  be  inferred  from  the  fact  that  Pasquier,  writing 
previous  to  1584,  speaks  of  it  as  altogether  a  matter  of  the 
past.9 

The  fierce  mountaineers  of  Beam  were  comparatively 
inaccessible  to  the  innovating  spirit  of  the  age,  and  pre- 
served their  feudal  independence  amid  the  progress  and  re- 
form of  the  sixteenth  century,  long  after  it  had  become  obso- 
lete elsewhere  throughout  Southern  Europe.  Accordingly, 
we  find  the  practice  of  compurgation  maintained  as  a  regular 
form  of  procedure  in  the  latest  revision  of  their  code,  made 
by  Henry  II.  of  Navarre  in  1551,  which  continued  in  force 
until  the  eighteenth  century.3  The  influence  of  the  age  is 
shown,  however,  even  there,  in  a  modification  of  the  oath, 
which  is  no  longer  an  unreserved  confirmation  of  the  prin- 
cipal, but  a  mere  affirmation  of  belief.4 

In  Castile,  a  revival  of  the  custom  is  to  be  found  in  the 
code  compiled  by  Pedro  the  Cruel,  in  1356,  by  which,  in 
certain  cases,  the  defendant  was  allowed  to  prove  his  inno- 
cence with  the  oath  of  eleven  hidalgos.5    This,  however,  is 

1  Anc.  Coutume  de  Normandie,  chap.  Ixxxv.  (Bourdot  de  Richebourg,  IV. 
53-4.) 

"  Recherches  de  la  France,  Liv.  iv.  chap.  iii.  Concerning  the  date  of 
this,  see  La  Croix  du  Maine,  s.  v.  Estienne  Pasquier. 

3  Fors  et  Cost,  de  Beam,  Rubr.  de  Juramentz  (Bourdot  de  Richebourg, 
IV.  1082). 

*  Lo  jurament  deu  seguido  se  fe,  Juran  per  aquetz  sanctz  bertat  ditz 
exi  que  io  crey. 

5  E  si  gelo  negare  e  non  gelo  quisier  probar,  devel'  facer  salvo  con  once 
Fijosdalgo  e  el  doceno,  que  non  lo  690. — (Fuero  Viejo  de  Castilla,  Lib.  I. 
6 


62  THE    WAGER    OF     LAW. 

so  much  in  opposition  to  the  efforts  made  a  century  earlier, 
by  Alfonso  the  Wise  in  the  Particlas,  to  enforce  the  prin- 
ciples of  the  Roman  jurisprudence,  and  is  so  contrary  to 
the  spirit  of  the  Ordenamiento  de  Alcala,  which  continued 
in  force  until  the  fifteenth  century,  that  it  can  only  be  re- 
garded as  a  tentative  innovation,  of  mere  temporary  vali- 
dity. 

The  Northern  races  resisted  more  obdurately  the  advances 
of  the  resuscitated  influence  of  Rome.  Though  we  have  seen 
Frederick  II.  omitting  all  notice  of  compurgation  in  the  code 
prepared  for  his  Neapolitan  dominions  in  1231,  he  did  not 
attempt  to  abrogate  it  among  his  German  subjects,  for  it  is 
alluded  to  in  a  charter  granted  to  the  city  of  Regensburg  in 
1230.1  The  "Speculum  Suevicum,"  which  during  the  thir- 
teenth and  fourteenth  centuries  was  the  municipal  law  of 
Southern  Germany,  directs  the  employment  of  conjurators 
in  various  classes  of  actions  which  do  not  admit  of  direct 
testimony.2  How  thoroughly  it  remained  a  portion  of  the 
recognized  system  of  legal  procedures  is  evident  from  a 
constitution  issued  by  Charles  V.  in  1548,  wherein  its  use 
is  enjoined  in  doubtful  cases  in  a  manner  to  show  that  it 
was  an  existing  resource  of  the  law,  and  that  it  retained 
its  hold  upon  public  confidence,  although  the  conjurators 
were  only  required  to  swear  as  to  their  belief  in  the  oath 
of  their  principal.3 

In  Scotland,  even  as  late  as  the  middle  of  the  fourteenth 
century,  its  use  is  proved  by  a  statute  which  provides  that 

Tit.  v.  1.  12.)  It  will  be  observed  that  this  is  an  unqualified  recognition  of 
the  system  of  negative  proofs. 

1  Du  Cange,  s.  v.  Juramentum. 

2  Jur.  Provin.  Alaman.  cap.  xxiv. ;  cccix.  §  4;  cccxxix.  §$  2,  3 ;  cccxxxix. 
§3. 

3  Sique  accusatustanta  ac  tam  gravi  suspitione  laboraret  ut  aliorum  quoque 
purgatione  necesseesset,  in  arbitratu  stet  judicis,  sibi  earn  velit  injungere,  nee 
ne,  qui  nimirum  compurgatores  jurabunt,  se  credere  quod  ille  illive  qui  se 
per  juramentum  excusarunt,  recte  vereque  juraverint. — Constit.  de  Pace 
Publica  cap.  xv.  §  1.     (Goldast.  Constit.  Imp.  I.  541.) 


D  E  N  MARK  —  BWBD1N  —  POLAND. 

if  ■  thief  escaped  firom  confinement,  the  lord  of  the  prison 

should  clear  himself  of  coinplicit y  with  the  evasion  by  t  lit* 
oaths  of  thirty  conjurators,  of  whom  three  were  required 
to  be  noble*.1 

The  Scandinavian  nations  adhered  to  the  custom  with 
even  greater  tenacity.  In  the  code  of  Haeo  Haconsen, 
issued  towards  the  close  of  the  thirteenth  century,  it  ap- 
pears as  the  basis  of  defensive  procedure  in  almost  all 
criminal  cases,  and  even  in  civil  suits  its  employment  is 
not  unfrequently  directed,  the  number  of  conjurators  being 
proportioned  to  the  nature  of  the  crime  or  to  the  amount 
at  stake,  and  regulations  for  administering  the  oath  being 
given  with  much  minuteness.3  In  Denmark,  an  allusion  to 
it  is  found  in  1537  in  the  laws  of  Christiern  III.,3  and  its 
vitality  among  the  people  is  shown  by  the  fact  that  even  in 
1683,  Christiern  V.,  in  promulgating  a  new  code,  found  it 
necessary  to  formally  prohibit  accused  persons  from  being 
forced  to  provide  conjurators.4  In  Sweden,  its  existence 
was  similarly  prolonged.  Directions  for  its  use  are  con- 
tained in  the  code  which  was  in  force  until  the  seventeenth 
century,5  and  it  is  even  alluded  to  in  an  ordinance  of  Queen 
Christina,  issued  in  1653.8 

It  is  not  a  little  singular  that  the  latest  active  existence  of 
a  custom  which  appears  so  purely  Teutonic  should  be  found 
among  a  portion  of  the  Sclavonic  race.  In  Poland,  it  is 
described  as  being  in  full  force  as  late  as  the  eighteenth 
century,  the  defendant  being  obliged  to  support  his  purga- 
torial oath  with  conjurators,  who  swore  as  to  its  truth.7 

1  Statut.  Davidi  II.  cap.  i.  $  6. 

3  Jarnsida,  Mannhelge  &  Thiofa-Balkr  passim ;  Erfthatal  cap.  xxiv.  ; 
Landabrigtha-Balkr  cap.  xxviii.  ;  Kaupa-Balkr  cap.  v.,  ix.,  etc. 

3  Quoted  by  Thorpe,  Ancient  Laws,  <fcc,  of  England,  I.  28. 

4  Neraini  in  causa  ulla  injungendum  est  ut  duodecim  virorum  juramento 
se  purgare  debeat. — Christiani  V.  Jur.  Danic.  Lib.  i.  c.  xv.  §  8. 

*  Poteritque  se  tunc  purgare  cui  crimen  imponitur  juramento  XVIII.  viro- 
rum.— Raguald.  Ingermund.  Leg.  Suecorum  Lib.  i.  c.  xvi. 
c  Konigswarter,  op.  cit.  p.  168.  • 

1  Ludewig,  Reliq.  MSS.  T.  VII.  p  401. 


64  THE    WAGER    OF    LAW. 

The  constitutional  reverence  of  the  Englishman  for  estab- 
lished forms  and  customs,  however,  preserved  this  relic  of 
barbarism  in  the  common  law  to  a  period  later  by  far  than 
its  disappearance  from  the  codes  of  nations  regarded  by 
Great  Britain  as  her  inferiors  in  progress  and  enlighten- 
ment. We  have  already  seen  from  Glanville  and  Bracton 
that  even  in  the  twelfth  and  thirteenth  centuries  the  "wager 
of  law,"  as  compurgation  was  called,  was  practically  of 
little  importance,  yet  no  effort  was  made  to  remove  it  by 
statute,  and  it  long  remained  as  a  solecism  in  the  English 
courts.  The  Fleta,  which  is  about  twenty-five  years  later 
than  Bracton's  work,  gives  directions  as  to  its  use,  by 
which  we  learn  that  in  actions  of  debt  the  defendant  was 
only  required  to  produce  conjurators  double  in  number  to 
the  witnesses  of  the  plaintiff,1  thus  offering  an  immense 
premium  on  dishonesty  and  perjury.  In  spite  of  this,  it 
remained  an  integral  part  of  the  law.  The  "  Termes  de  la 
Ley,"  compiled  in  the  early  part  of  the  sixteenth  century, 
states  as  the  existing  practice  that  "  when  one  shall  wage 
his  law,  he  shall  bring  with  him  6,  8,  or  12  of  his  neighbors, 
as  the  court  shall  assign  him,  to  swear  with  him."  Style's 
"Practical  Register,"  published  in  1651,  also  describes  the 
process,  but  an  absurd  mistake  as  to  the  meaning  of  the 
traditional  expression  "  jurare  manu"  shows  that  the  matter 
was  rather  a  legal  curiosity  than  a  procedure  in  ordinary 
use ;  and,  indeed,  the  author  expressly  states  that  the  prac- 
tice having  been  "abused  by  the  iniquity  of  the  people,  the 
law  was  forced  to  find  out  another  way  to*  do  justice  to 
the  nation."  Still  the  law  remained  unaltered,  and  a  case 
occurred  in  IT 9 9  in  which  a  defendant  successfully  eluded 
the  payment  of  a  claim  by  producing  compurgators  who 
"each  held  up  his  right  hand,  and  then  laid  their  hands 
upon  the  book  and  swore  that  they  believed  what  the  de- 

1  Ut  si  duos  vel  tres  testes  produxerit  ad  probandum,  oportet  quod  de- 
fensio  fiat  per  quatuor  veljaer  sex;  ita  quod  pro  quolibet  teste  duos  producat 
juratores  usque  ad  duodecira. — Lib.  II.  c.  lxiii.  s.  10. 


THE    ECCLESIASTICAL    COURTS.  Gfi 

fendant  swore  was  true."  The  court  endeavored  to  prevent 
this  force,  but  law  was  law,  and  reason  was  forced  to  sub- 
mit. Even  this  did  not  provoke  a  change.  In  1824,  in  the 
case  of  King  v.  Williams  (2  Barnewall  &  Cresswell,  528), 
some  black-letter  lawyer  revived  the  forgotten  iniquity  for 
the  benefit  of  a  client  who  could  get  no  testimony,  and 
demanded  that  the  court  should  prescribe  the  number  of 
conjurators  necessary  for  the  defence,  but  the  court  refused 
assistance,  desiring  to  give  the  plaintiff  the  benefit  of  any 
mistake  that  might  be  made.  Williams  then  got  together 
eleven  conjurators,  and  appeared  in  court  with  them  at  his 
back,  when  the  plaintiff,  recognizing  the  futility  of  any 
further  proceedings,  abandoned  his  case  in  disgust.1  Still 
the  fine  reverential  spirit  postponed  the  inevitable  innova- 
tion, and  it  was  not  until  1833  that  the  wager  of  law  was 
formally  abrogated  by  3  and  4  William  IV.,  c.  42,  s.  13.* 

While  the  common  sense  of  mankind  was  gradually  elimi- 
nating the  practice  from  among  the  recognized  procedures 
of  secular  tribunals,  the  immutable  nature  of  ecclesiastical 
observances  prolonged  its  vitality  in  the  bosom  of  the 
church.  We  have  seen  above  that  Innocent  III.,  about  the 
commencement  of  the  thirteenth  century,  altered  the  form 
of  oath  from  an  unqualified  confirmation  to  a  mere  asser- 
tion of  belief  in  the  innocence  of  the  accused.  That  this 
at  once  became  the  standard  formula  in  ecclesiastical  cases 
is  probable  when  we  find  it  adopted  for  the  oaths  of  the 
compurgators  who,  during  the  Albigensian  persecution, 
were  required  by  the  nascent  Inquisition  in  all  cases  to 
assist  in  the  purgation  of  such  suspected  heretics  as  were 
allowed  to  escape  so  easily.3    The  practice  thus  commenced 

1  I  owe  these  various  references  to  a  curious  paper  in  the  London  "Jurist" 
for  March,  1827,  the  writer  of  which  instances  the  wager  of  law  as  an  evi- 
dence of  "that  jealous  affection  and  filial  reverence  which  have  converted 
our  code  into  a  species  of  museum  of  antiques  and  legal  curiosities." 

3  Wharton's  Law  Lexicon,  2d  ed.,  p.  758. 

s  Ego  talis  juro  .   .  .  me  firmiter  credere  quod  talis  non  fuit  Insabbatus, 

6* 


66  THE    WAGER    OF     LAW. 

at  the  foundation  of  the  Inquisition  was  persevered  in  by 
that  terrible  tribunal  to  the  last.  The  accused  against 
whom  nothing  could  be  proved  was  called  upon  to  produce 
compurgators  before  he  could  be  acquitted,  and  a  failure 
to  procure  the  number  designated  by  the  judge  was  equiva- 
lent to  a  condemnation.1  This  fearful  system  of  the  pre- 
sumption of  guilt,  requiring  the  negative  proof  from  the 
unfortunate  wretch  whom  suspicion  had  deprived  of  his 
friends,  was  continued  in  force  until  the  final  abolition  of 
the  Inquisition.2 

In  the  regular  ecclesiastical  courts,  Lancelotti,  at  the  end 
of  the  sixteenth  century,  speaks  of  compurgation  as  the 
only  mode  of  defence  then  in  use  in  doubtful  cases,  where 
the  evidence  was  unsatisfactory.3  And  amid  certain  orders 
of  monks  within  the  last  century,  questions  arising  between 
themselves  were  settled  by  this  mode  of  trial.4 

Even  in  England,  after  the  Anglican  Church  had  received 
its  final  shape  under  Cranmer,  during  the  reign  of  Edward 
VI.,  the  custom  appears  in  a  carefully  compiled  body  of 
ecclesiastical  law,  of  which  the  formal  adoption  was  only 
prevented  accidentally  by  the  untimely  death  of  the  young 
king.  By  this,  a  man  accused  of  a  charge  resting  on  pre- 
sumptions and  incompletely  proved,  was  required  to  clear 
himself  with  four  compurgators  of  his  own  rank,  who  swore, 
as  provided  in  the  decretals  of  Innocent  III.,  to  their  belief 
in  his  innocence.5 

Valdensis,  vel  Pauperum  de  Lugduno  .  .  .  et  credo  firmiter  eum  in  hoc 
jurasse  verum. — Doctrina  de  modo  procedendi  contra  Hsereticos.  (Mart,  et 
Durand.  T.  V.  p.  1801.) 

1  Si  vero  susciperet  purgationem,  et  in  ea  deficeret,  uti  haereticus  esset 
censendus,  et  poena)  hseretici  subjaceret. —  (Villadiego,  Fuero  Juzgo,  318b.) 
Villadiego  wrote  in  1599,  and  even  the  terror  of  the  Holy  Office  could  not 
prevent  him  from  stigmatizing  the  system — "ha>c  purgatio  fragilis  est,  peri- 
culosa  et  caeca  atque  fallax." 

8  Du  Cange,  s.  v.  Piirgatio. 

3  Institut.  Jur.  Canon.  Lib.  IV.  Tit.  ii.  §  2. 

4  Du  Cange,  loc.  cit. 

s  Burnet,  Reformation,  Vol.  I.  p.  199  (Ed.  1681). 


ACCUSATORIAL    CONJURATORS.  Gt 

Though  not  strictly  a  portion  of  onr  subject,  the  question 
is  not  without  interest  as  to  the  power  or  obligation  of  the 
plaint  ill  or  accuser  to  fortify  his  case  with  conjurators. 
Then  is  little  evidence  of  such  a  custom  in  primitive  times, 
but  one  or  two  allusions  to  it  in  the  "Leges  Barbarorum'' 
show  that  it  was  occasionally  practised.  Some  of  the 
earlier  texts  of  the  Salique  law  contain  a  section  providing 
that  in  certain  cases  the  complainant  shall  sustain  his 
action  with  a  number  of  conjurators  varying  with  the 
amount  at  stake;  a  larger  number  is  required  of  the  de- 
fendant in  reply;  and  it  is  presumable  that  the  judges 
weighed  the  probabilities  on  either  side,  and  rendered  a  de- 
cision accordingly.1  As  this  is  omitted  in  the  later  revi- 
sions of  the  law,  it  probably  was  not  widely  practised,  or 
regarded  as  of  much  importance.  Among  the  Baioarians, 
a  claimant  of  an  estate  produced  six  conjurators  who  took 
the  oath  with  him,  and  whose  united  efforts  could  be  re- 
butted by  the  defendant  with  a  single  competent  witness.8 
These  directions  are  so  precise  that  there  can  be  no  doubt 
that  the  custom  prevailed  to  a  limited  extent  among 
certain  tribes,  as  a  natural  expression  of  the  individuality 
of  each  house  or  family  as  distinguished  from  the  rest  of 
the  sept.  That  it  was,  perhaps,  more  generally  employed 
than  the  scanty  references  to  it  in  the  codes  would  indi- 
cate may  be  inferred  from  one  of  the  false  decretals  which 
Charlemagne  was  induced  to  adopt  and  promulgate. 
According  to  this,  no  accusation  against  a  bishop  could  be 
successful  unless  supported  by  seventy-two  witnesses,  all 
of  whom  were  to  be  men  of  good  repute ;  forty-four  were 
required  to  substantiate  a  charge  against  a  priest,  thirty- 
seven  in  the  case  of  a  deacon,  and  seven  when  a  member  of 
the  inferior  grades  was  implicated.3     Though  styled  wit- 

1  Tit.  lxxiv.  of  Herold's  text.     Cap.  Extravagant.   No.  xvm.  of  Par- 
dessus. 

3  L.  Baioar.  Tit.  xvi.  cap.  i.  §  2. 

3  Capit.  Car.  Mag   VI.  ann.  806  c.  xxiii. 


68  THE    WAGER    OF    LAW. 

nesses  in  the  text,  the  number  required  is  so  large  that 
they  could  evidently  have  been  only  conjurators,  with  whom 
the  complainant  supported  his  oath  of  accusation,  and  the 
manufacture  of  such  a  law  would  seem  to  show  that  the 
practice  of  employing  such  means  of  substantiating  a 
charge  was  familiar  to  the  minds  of  men. 

In  England,  the  Anglo-Saxon  laws  required,  except  in 
trivial  cases,  a  "  fore-oath"  from  the  accuser  {forath,  ante- 
jur amentum,  prsejur amentum),  and  William  the  Conqueror, 
in  his  compilation  of  the  laws  of  Edward  the  Confessor, 
shows  that  this  was  sometimes  strengthened  by  requiring 
the  addition  of  conjurators,  who  were  in  no  sense  witnesses, 
since  their  oath  had  reference,  not  to  the  facts  of  the  case, 
but  solely  to  the  purity  of  intention  on  the  part  of  the 
accuser.1  Indications  of  the  same  procedure  are  to  be  found 
in  the  collection  known  as  the  Laws  of  Henry  I.2 

In  an  age  of  comparative  simplicity,  it  is  natural  that 
men  should  turn  rather  to  the  guarantees  of  individual 
character,  or  to  the  forms  of  venerable  superstition,  than  to 
the  subtleties  of  legal  procedure.  Even  as  the  defendant 
was  expected  to  produce  vouchers  of  his  truthfulness,  so 
might  the  plaintiff  be  equally  required  to  give  evidence  that 
his  repute  among  his  neighbors  was  such  as  to  justify  the 
belief  that  he  would  not  bring  a  false  charge  or  advance  an 
unfounded  claim.  The  two  customs  appear  to  arise  from 
the  same  process  of  reasoning  and  to  be  identical  in  spirit, 
yet  it  is  somewhat  singular  that,  as  the  compurgatorial 
oath  declined,  the  practice  of  sustaining  the  plaintiff's  case 
with  conjurators  seems  to  have  become  more  common.     In 

1  Et  li  apelur  jurra  sur  lui  par  VII.  humes  nuraes,  sei  siste  main,  que 
pur  haur  nel  fait,  ne  pur  auter  chose,  si  pur  sun  dreit  nun  purchacer. — L. 
Guillel.  I.  cap.  xiv. 

Q  Omnis  tihla  traetetur  ante-juramento  piano  vel  observato. — L.  Henrici 
I.  Tit.  Ixiv.  §  1.  Ante-juramento  a  compellante  habeatur,  et  alter  se 
sexto  decime  sue  purgetur ;  sicut  accusator  precesserit. — Ibid.  Tit.  lxvi. 
§8. 


ACCUSATulM  a  1.  C0NJURAT0R8.         69 

Uenrn  the  laws  of  the  thirteenth  century  provide  that  in 
cases  of  debt  under  forty  sous,  where  there  was  QO  testi- 
mony on  either  side,  the  claimant  could  substantiate  his 
case  by  bringing  forward  one  conjurator,  while  the  defend- 
ant could  rebut  it  with  two.1  In  Germany,  about  the 
same  period,  the  principle  was  likewise  admitted,  as  is  evi- 
dent from  the  ujuramentum  supermortuum"  already  re- 
ferred to,  and  other  provisions  of  the  municipal  law."  So 
thoroughly,  indeed,  was  it  established  that,  in  some  places, 
in  prosecutions  for  highway  robbery,  arson,  and  other 
Crimes,  the  accuser  had  a  right  to  require  every  individual 
in  court,  from  the  judge  to  the  spectator,  to  help  him  with 
an  oath  or  to  swear  that  he  knew  nothing  of  the  matter,  and 
even  the  attorney  for  the  defendant  was  obliged  to  undergo 
the  ceremony.3  In  Sweden  it  was  likewise  in  use  under  the 
name  of  jeffniteed.*  In  Norway  and  Iceland,  in  certain 
cases  of  imputed  crime,  the  accuser  was  bound  to  produce 
ten  companions,  of  whom  eight  appeared  simply  as  sup- 
porters, while  two  swore  that  they  had  heard  the  offence 
spoken  of,  but  that  they  knew  nothing  about  it  of  their 
own  knowledge — the  amount  of  weight  attached  to  which 
asseveration  is  shown  by  the  fact  that  the  accused  only 
required  two  conjurators  to  clear  himself.5 

Perhaps  the  most  careful  valuation  of  the  oath  of  a 
plaintiff  is  to  be  found  in  the  Coutumier  of  Bordeaux,  which 
provides  that,  in  civil  cases  not  exceeding  four  sols  in 
amount,  the  claimant  should  substantiate  his  case  by  an 
oath  on  the  Gospels  in  the  Mayor's  Court ;  when  from  four 
to  twenty  sols  were  at  stake,  he  was  sworn  on  the  altar  of 

1  For  de  Morlaas,  Rubr.  xxxviii.  art.  63. 

2  Jur.  Provin.  Alaman.  cap.  cccix.  §  4. 

3  Ibid.  cap.  cccxcviii.  §§  19,  20. 
*  Du  Cange  sub  voce. 

s  Ideo  manus  libro  imponimus  sacro,  quod  audivimus  (crimen  ruraore 
sparsum),  et  nobis  ignotum  est  verum  sit  nee  ne. — Jarnsida,  Mannbelge 
cap.  xxiv. 


70  THE    WAGER    OF    LAW. 

St.  Projet  or  St.  Antoine ;  from  twenty  sols  to  fifteen  livres, 
the  oath  was  taken  in  the  cemetery  of  St.  Seurin,  while  for 
amounts  above  that  snm  it  was  administered  on  the  "  Fort" 
or  altar  of  St.  Seurin  himself.  Persons  whose  want  of  vera- 
city was  notorious  were  obliged  in  all  cases,  however  un- 
important, to  swear  on  the  Fort,  and  had  moreover  to 
provide  a  conjurator  who  with  an  oath  of  equal  solemnity 
asserted  his  belief  in  the  truth  of  his  companion.1 

The  custom  of  supporting  an  accusatorial  oath  by  con- 
jurators  was  maintained  in  some  portions  of  Europe  to  a 
comparatively  recent  period.  Wachter3  prints  a  curious 
account  of  a  trial,  occurring  in  a  Swabian  court  in  1505, 
which  illustrates  this,  as  well  as  the  weight  which  was  still 
attached  to  the  oath  of  a  defendant.  A  woman  accused 
three  men  on  suspicion  of  being  concerned  in  the  murder 
of  her  husband.  They  denied  the  charge,  but  when  the 
oath  of  negation  was  tendered  to  them,  with  the  assurance 
that,  if  they  were  Swabians,  it  would  acquit  them,  they 
demanded  time  for  consideration.  Then  the  advocate  of 
the  widow  stepped  forward  to  offer  the  oath  of  accusation, 
and  two  conjurators  being  found  willing  to  support  him, 
the  accused  were  condemned  without  further  examination 
on  either  side.  A  similar  process  was  observed  in  the 
Fehmgericht,  or  Court  of  the  Free  Judges  of  Westphalia, 
whose  jurisdiction  in  the  fourteenth  and  fifteenth  centuries 
became  extended  over  the  whole  of  Germany.  Accusations 
were  supported  by  conjurators,  and  when  the  defendant 
was  a  Frei-graff,  or  presiding  officer  of  a  tribunal,  the  com- 
plainant was  obliged  to  procure  seven  Frei-schoppen,  or 
free  judges,  to  take  the  accusatorial  oath  with  him.3 

The  latest  indication  that  I  have  met  with  of  established 
legal  provisions  of  this  nature  occurs  in  the  laws  of  Britanny, 
as  revised  in  1539.     By  this,  a  man  claiming  compensation 

1  Kabanis,  Revue  Hist,  de  Droit,  1861,  p.  511. 

5  Du  Boys,  Droit  Criminel  des  Peuples  Modernes,  II.  595. 

3  Freher.  de  Secret.  Judic.  cap.  xvii.  §  26. 


BRITANNY.  71 

for  property  taken  away  is  to  be  believed  on  oath  as  to  his 
statement  of  its  value,  provided  lie  can  procure  companions 

worthy  of  credence  to  depose  ^qn'ils  croyent  que  le  joreur 

ait  fait  bon  et  loyal  serment."1  Even  this  last  vestige  dis- 
appears in  the  revision  of  the  Coutumier  made  by  order  of 
Henry  III.  in  1580. 

1  Anc.  Cout.  de  Bretngne,  Tit.  Till.  art.  168. 


II. 

THE  WAGER  OF  BATTLE 


When  man  is  emerging  from  barbarism,  the  struggle 
between  the  rising  powers  of  reason  and  the  waning  forces 
of  credulity,  prejudice,  and  custom,  is  full  of  instruction. 
Wise  in  our  generation,  we  laugh  at  the  inconsistencies 
of  our  forefathers,  which,  rightly  considered  as  portions 
of  the  great  cycle  of  human  progress,  are  rather  to  be 
respected  as  trophies  of  the  silent  victory,  pursuing  its 
irresistible  course  by  almost  imperceptible  gradations. 
When,  therefore,  in  the  dark  ages,  we  find  the  elements 
of  pure  justice  so  strangely  intermingled  with  the  arbi- 
trament of  force,  and  with  the  no  less  misleading  appeals 
to  chance,  dignified  under  the  forms  of  Christianized  super- 
stition, we  should  remember  that  even  this  is  an  improve- 
ment on  the  all-pervading  first  law  of  brute  strength. 
We  should  not  wonder  that  barbarous  tribes  require  to  be 
enticed  towards  the  conceptions  of  abstract  right,  through 
pathwa3rs  which,  though  devious,  must  reach  the  goal  at 
last.  When  the  strong  man  is  brought,  by  whatever  means, 
to  yield  to  the  weak,  a  great  conquest  is  gained  over  human 
nature ;  and  if  the  aid  of  superstition  is  invoked  to  decide 
the  struggle,  we  have  no  right,  while  enjoying  the  result,  to 
stigmatize  the  means  by  which  Providence  has  seen  fit  to 
bring  it  about.  With  uneducated  nations,  as  with  unedu- 
cated men,  sentiment  is  stronger  than  reason,  and  sacrifices 
ay  ill  be  made  for  the  one  which  are  refused  to  the  other. 
If,  therefore,  the  fierce  warrior,  resolute  to  maintain  tin 
7 


74  THE    WAGER    OF    BATTLE. 

injustice  or  a  usurpation,  can  be  brought  to  submit  his  claim 
to  the  chances  of  an  equal  combat  or  of  an  ordeal,  he  has 
already  taken  a  vast  step  towards  acknowledging  the  em- 
pire of  right,  and  abandoning  the  personal  independence 
which  is  incompatible  with  the  relations  of  human  society. 
It  is  by  such  indirect  means  that  mere  aggregations  of 
individuals,  each  relying  on  his  sword  and  right  hand,  have 
been  gradually  led  to  endure  regular  forms  of  government, 
and,  thus  becoming  organized  nations,  to  cherish  the  ab- 
stract idea  of  justice  as  indispensable  between  man  and 
man.  Viewed  in  this  light,  the  ancient  forms  of  procedure 
lose  their  ludicrous  aspect,  and  we  contemplate  their  whim- 
sical jumble  of  force,  faith,  and  reason,  as  we  might  the 
first  rude  engine  of  Watt,  or  the  "  Clermont"  which  pain- 
fully labored  in  the  waters  of  the  Hudson — clumsy  and 
rough  it  is  true,  yet  venerable  as  the  origin  and  prognostic 
of  future  triumphs. 

There  is  a  natural  tendency  in  the  human  mind  to  cast 
the  burden  of  its  doubts  upon  a  higher  power,  and  to  relieve 
itself  from  the  effort  of  decision  by  seeking  in  mystery  the 
solution  of  its  difficulties.  From  the  fetish  worshippers 
of  Congo  to  the  polished  sceptics  who  frequented  the  salon 
of  Mile,  le  Normant,  the  distance,  though  great,  is  bridged 
over  by  this  common  weakness ;  and  whether  the  informa- 
tion sought  be  of  the  past  or  of  the  future,  the  impulse  is 
the  same.  When,  therefore,  in  the  primitive  mallum,  the 
wisdom  of  the  rachinborgs  was  at  fault,  and  the  absence 
or  equal  balance  of  testimony  rendered  a  verdict  difficult, 
what  was  more  natural  than  to  seek  a  decision  by  appeal- 
ing to  the  powers  above,  and  to  leave  the  matter  to  the 
judgment  of  God?1     Nor,  with  the  warlike  instincts  of  the 

1  Thus,  as  late  as  the  thirteenth  century,  the  municipal  law  of  Southern 
Germany,  in  prescribing  the  duel  for  cases  destitute  of  testimony,  says  with 
a  naive  impiety  :  u  Hoc  ideo  statutum  est,  quod  causa  heec  neraini  cognita 
est  quam  Deo,  cujus  est  eandein  juste  decidere."  Logical  enough,  if  the 
premises  be  granted  !     Even  as  late  as  1617,  August  Viescher,  in  an  elabo 


DISTINCT     rmOM     I  HI     MODERN    DUEL.  75 

race,  is  it  surprising  thai  this  appeal  should  be  made  to 
the  God  of  battles,  to  whom,  in  the  ardor  of  new  and 
Imperfect  Christianity,  they  looked  in  every  case  for  a  spe- 
cial interposition  in  favor  of  innocence  and  justice.  The 
curious  mingling  of  procedure  is  well  illustrated  in  a  form 
of  process  prescribed  by  the  primitive  Bavarian  law.  A 
man  comes  into  court  with  six  conjurators  to  claim  an 
estate;  the  possessor  defends  his  right  with  a  single  wit- 
ness, who  must  be  a  landholder  of  the  vicinage.  Tnc 
claimant  then  attacks  the  veracity  of  the  witness — "Thou 
hast  lied  against  me.  Grant  me  the  single  combat,  and  let 
God  make  manifest  whether  thou  hast  sworn  truth  or  false- 
hood;"1 and,  according  to  the  event  of  the  duel,  is  the 
decision  as  to  the  truthfulness  of  the  witness,  and  the  own- 
ership of  the  property. 

In  discussing  the  judicial  combat,  it  is  important  to  keep 
in  view  the  wide  distinction  between  the  wager  of  battle 
as  a  judicial  institution,  and  the  custom  of  duelling  which 
has  obtained  with  more  or  less  regularity  among  all  races 
and  at  all  ages.  When  the  Horatii  met  the  Curiatii,  or 
when  Antony  challenged  Octavius  to  decide  the  fate  of  the 
empire  of  the  world  with  their  two  swords,  these  were 
isolated  proposals  to  save  the  unnecessary  effusion  of  blood, 
or  to  gratify  individual  hate.     When  the  raffine  of  the 

rate  treatise  on  the  judicial  duel,  expressed  the  same  reliance  on  the  divine 
interposition  :  "Dei  enim  hoc  judicium  dicitur,  soli  Deo  causa  terminanda 
committitur,  Deo  igitur  authore  singulare  hoc  certamen  suscipiendum,  ut 
justo  judicio  adjutor  sit,  omnisque  spes  ad  solam  suramaj  providentiam 
Trinitatis  referenda  est." — (Vischer  Tract.  Juris  Duellici  Universi,  p.  109.) 
This  work  is  a  most  curious  anachronism.  Viescher  was  a  learned  juriscon- 
sult who  endeavored  to  revive  the  judicial  duel  in  the  seventeenth  century 
by  writing  a  treatise  of  700  pages  on  its  principles  and  practice.  He  exhibits 
the  wide  range  of  his  studies  by  citations  from  no  less  than  six  hundred  and 
seventy-one  authors,  and  manages  to  convey  an  incredibly  small  amount  of 
information  on  the  subject. 

1  Mendacium  jurasti  contra  me:  sponde  me  pugna  duorum,  et  manifestet 
Deus  si  mendacium  an  veritatem  jurasti.— L.  Baioar.    Tit.  xvi.  c.  i.  §  2. 


76  THE    WAGER    OF    BATTLE. 

times  of  Henri  Quatre,  or  the  modern  fire-eater,  wipes  out 
some  imaginary  stain  in  the  blood  of  his  antagonist,  the 
duel  thus  fought,  though  bearing  a  somewhat  closer  ana- 
logy to  the  judicial  combat,  is  not  derived  from  it,  but  from 
the  right  of  private  vengeance  which  was  common  to  all 
the  Teutonic  tribes,  and  from  the  cognate  right  of  private 
warfare  which  was  the  exclusive  privilege  of  the  gentry 
during  the  feudal  period.1  The  established  euphuistic 
formula  of  demanding  "the  satisfaction  of  a  gentleman," 
thus  designates  both  the  object  of  the  custom  and  its 
origin.  The  abolition  of  private  wars  gave  a  stimulus  to 
the  duel  at  nearly  the  period  when  the  judicial  combat  fell 
gradually  into  desuetude.  The  one  thus  succeeded  to  the 
other,  and,  being  kindred  in  nature,  it  is  not  surprising  that 
for  a  time  there  was  some  confusion  in  the  minds  of  men 
respecting  their  distinctive  characteristics.  Yet  it  is  not 
difficult  to  draw  the  line  between  them.  The  object  of  the 
one  was  vengeance  and  reparation  ;  the  theory  of  the  other 
was  the  discovery  of  truth,  and  the  impartial  ministration 
of  justice. 

It  is  easy  to  multiply  examples  illustrating  this.  John 
Van  Arckel,  a  knight  of  Holland,  followed  Godfrey  of 
Bouillon  to  the  first  crusade.  When  some  German  forces 
joined  the  army,  a  Tyrolese  noble,  seeing  Van  Arckel's  arms 
displayed  before  his  tent,  and  recognizing  them  as  identi- 
cal with  his  own,  ordered  them  torn  down.  The  insult  was 
flagrant,  but  the  injured  knight  sought  no  satisfaction  for 
his  honor.  Laying  the  case  before  the  chiefs  of  the  crusade, 
an  examination  was  made  and  both  parties  proved  their 
ancestral  right  to  the  same  bearings.  To  decide  the  con- 
flicting and  incompatible  claims,  the  judges  ordered  the 

1  The  early  edicts  directed  against  the  duel  proper  (Ordonn.  Charles  IX., 
an.  1566;  Henri  IV.,  an.  1602 — in  Fontanon  I.  665)  refer  exclusively  to 
the  noblesse,  and  to  those  entitled  to  bear  arms,  as  addicted  to  the  practice, 
while  the  judicial  combat,  as  we  shall  see,  was  open  to  all  ranks  and  was 
enforced  indiscriminately  upon  all. 


EXAMPLES    OF    THE    JUDICIAL    DUEL.  77 

judicial  combat,  in  which  Tan  Arckel  deprived  his  antago- 
nist ol*  Life  and  quartering*  together,  and  vindicated  his 
right  to  the  argent  2  bars  gules,  which  in  gratitude  to 
Heaven  he  bore  for  eight  long  years  in  Palestine.  This 
was  not  a  quarrel  on  a  punctilio,  nor  a  mode  of  obtaining 
redress  for  an  insult,  but  an  examination  into  a  legal  ques- 
tion which  admitted  of  no  other  solution  according  to  the 
manners  of  the  age.1  When,  after  the  Sicilian  Vespers, 
the  wily  Charles  of  Anjou  was  sorely  pressed  by  his  victo- 
rious rival  Don  Pedro  I.  of  Aragon,  and  desired  to  gain 
time  in  order  to  repress  a  threatened  insurrection  among 
his  Neapolitan  subjects,  he  sent  a  herald  to  Don  Pedro  to 
accuse  him  of  bad  faith  in  having  commenced  the  war 
without  defiance.  The  fiery  Catalan  fell  into  the  snare,  and 
in  order  to  clear  himself  of  the  charge,  which  was  not  ill- 
founded,  he  offered  to  meet  his  accuser  in  the  champ-clos. 
Both  parties  swore  upon  the  Gospels  to  decide  the  question 
by  combat,  a  hundred  on  each  side,  in  the  neutral  territory 
of  Bordeaux ;  and  Charles,  having  obtained  the  necessary 
suspension  of  arms,  easily  found  means  to  prevent  the 
hostile  meeting.3  Though  practically  this  challenge  may 
differ  little  from  that  of  Antony — its  object  in  reality  being 
the  crown  of  the  Two  Sicilies — still  its  form  and  purport 
were  those  of  the  judicial  duel,  the  accused  offering  to  dis- 
prove the  charge  of  mala  fides  on  the  body  of  his  accuser. 
So,  when  Francis  I.,  in  idle  bravado,  flung  down  the  gaunt- 
let to  Charles  V.,  it  was  not  to  save  half  of  Europe  from  v 
fire  and  sword,  but  simply  to  absolve  himself  from  the 
well-grounded  charge  of  perjury  brought  against  him  by 
the  Emperor  for  his  non-observance  of  the  treat}'  of  Mad- 
rid.    This  again,  therefore,  wore  the  form  of  the  judicial 

1  Chron.  Domin.  de  Arkel.  (Matthaci  Analect.  VIII.  296). 

3  Ramon  Muntaner,  cap.  Ixxi. — Nothing  more  romantic  is  to  be  found 
in  the  annals  of  chivalry  than  Muntaner's  account  of  Don  Pedro's  ride  to 
Bordeaux,  and  appearance  in  the  lists,  where  the  seneschal  was  unable  to 
guarantee  him  a  fair  field. 

7* 


78  THE    WAGER    OF    BATTLE. 

combat,  whatever  might  be  the  motives  of  personal  hate 
and  craving  of  notoriety  which  influenced  the  last  imitator 
of  the  follies  of  chivalry.1  The  celebrated  duel,  fought  in 
1547,  between  Jarnac  and  La  Chastaigneraye,  so  piteously 
deplored  by  honest  old  Brantome,  shows  the  distinction 
maintained  to  the  last.  It  was  conducted  with  all  judicial 
ceremonies,  in  presence  of  Henry  II.,  not  to  settle  a  point 
of  honor,  but  to  justify  Jarnac  from  a  disgusting  accusation 
brought  by  his  adversary.  Resulting  most  unexpectedly 
in  the  death  of  Chastaigneraye,  who  was  a  favorite  of  the 
king,  the  monarch  was  induced  to  put  an  end  to  all  legal- 
ized combats,  though  the  illegal  practice  of  the  private 
duel  not  only  continued  to  flourish,  but  increased  beyond 
all  precedent  during  the  succeeding  half-century — Henry 
IY.  having  granted  in  twenty-two  years  no  less  than  seven 
thousand  letters  of  pardon  for  duels  fought  in  contraven- 
tion of  the  royal  edicts.  The  modern  mode  of  obtaining 
u  satisfaction"  is  so  repugnant  to  the  spirit  of  our  age  that 
it  is  perhaps  not  to  be  wondered  at  if  its  advocates  should 
endeavor  to  affiliate  it  upon  the  ancient  wager  of  battle. 
Both  relics  of  barbarism,  it  is  true,  drew  their  origin  from 
the  same  habits  and  customs,  yet  they  have  coexisted  as 
separate  institutions  ;  and,  however  much  intermingled  at 
times  by  the  passions  of  periods  of  violence,  they  were 
practised  for  different  ends,  and  were  conducted  with  dif- 
ferent forms  of  procedure. 

Our  theme  is  limited  to  the  combat  as  a  judicial  process. 
Leaving,  therefore,  untouched  the  vast  harvest  of  curious 
anecdote  afforded  by  the  monomachial  propensities  of 
modern  times,  we  will  proceed  to  consider  briefly  the  his- 
tory of  the  legal  duel  from  its  origin  to  its  abrogation. 
Its  mediaeval  panegyrists  sought  to  strengthen  its  title  to 
respect  by  affirming  that  it  was  as  old  as  the  human  race, 
and  that  Cain  and  Abel,  unable  to  settle  their  conflicting 

1  Du  Bellay,  Memoires,  Lit.  III. 


ITS    ANTIQUITY.  70 

claims  in  any  other  mode.  Agreed  to  leave  the  decision  to 
the  chanees  of  single  eomhat  j  hut  we  will  not  enter  into 
speculations  so  recondite.  I'nknown  as  was  the  Judicial 
duel  to  the  races  of  classical  antiquity,  or  to  the  ancient 
civilizations  of  the  East,  and  confined  to  the  nations  of 
modern  Europe,  it  is  not  a  little  singular  that  the  custom 
should  have  prevailed  with  general  unanimity  from  Sparti- 
vento  to  the  North  Gape,  and  that,  with  but  one  or  two 
exceptions,  all  the  tribes  which  founded  the  European 
states  should  have  adopted  it  with  such  common  sponta- 
neity that  its  origin  cannot  be  assigned  with  certainty  to 
any  one  of  them.  It  would  seem  to  have  been  everywhere 
autochthonic,  and  the  theories  which  would  attribute  its 
paternity  especially  to  the  Burgundians,  to  the  Franks,  or 
to  the  Lombards,  are  equally  destitute  of  foundation. 

The  earliest  allusion  to  the  practice  occurs  in  Livy,  who 
describes  how  some  Spaniards  seized  the  opportunity  of  a 
gladiatorial  exhibition  held  by  Scipio  to  settle  various  civil 
suits  by  combat,  when  no  other  convenient  mode  of  solu- 
tion had  presented  itself;1  and  he  proceeds  to  particularize 
a  case  in  which  two  rival  cousins  decided  in  this  manner  a 
disputed  question  in  the  law  of  descent,  despite  the  earnest 
remonstrances  of  the  Roman  general.3  This  could  hardly 
have  been  a  prevailing  custom,  however,  among  the  abo- 
rigines, for  Csesar  makes  no  mention  of  it  among  the  Gauls, 
nor  does  Tacitus  among  the  Germans;3  and  their  silence  on 

1  Quidem  lites  quas  disceptando  finire  nequierant  aut  noluerant,  pacto  inter 
se  ut  victorem  res  sequeretur,  ferro  deereverunt. — Lib.  xxvn.  cap.  xxi. 

a  Nee  alium  deorum  horainumve  quam  Martem  se  judiceni  habituros  esse. 
—Ibid. 

9  A  passage  in  the  "  De  Moribus  Germanise,"  cap.  x.,  is  commonly,  but 
erroneously,  quoted  as  showing  the  existence  of  the  duel  as  a  means  of  evi- 
dence among  the  Germans.  When  about  to  undertake  an  important  war, 
one  of  the  enemy  was  captured  and  obliged  to  fight  with  a  chosen  champion, 
an  augury  being  drawn  from  the  result  as  to  the  event  of  the  war.  There 
is  a  vast  difference,  however,  between  a  special  omen  of  the  future,  and  a 
proof  of  the  past  in  the  daily  affairs  of  life. 

Du  Cange  quotes  an  expression  from  Paterculus  to  show  that  the  judicial 


80  THE    WAGER    OF     BATTLE. 

the  subject  must  be  accepted  as  conclusive,  since  a  system 
so  opposed  to  the  principles  of  the  Roman  law  could  not 
have  failed  to  impress  them,  had  it  existed.  Yet  in  the 
fourth  century,  an  allusion  which  occurs  in  Claudian  would 
seem  to  show  that  by  that  time  the  idea  had  become  familiar 
to  the  Roman  mind.1 

If  the  fabulous  antiquity  attributed  by  the  early  his- 
torians to  the  Danish  monarchy  be  accepted  as  credible,  a 
statement  may  be  quoted  from  Saxo  Grammaticus  to  the 
effect  that  about  the  Christian  era  Frotho  III.,  or  the  Great, 
ordered  the  employment  of  the  duel  to  settle  all  contro- 
versies, preferring  that  his  subjects  should  learn  to  rely  on 
courage  rather  than  on  eloquence  ;a  and  however  apocryphal 
the  chronology  may  be,  yet  the  tradition  shows  that  even 
in  those  ancient  times  the  origin  of  the  custom  was  already 
lost  in  the  night  of  ages.  Among  the  Feini  or  ancient 
Irish,  the  custom  undoubtedly  existed  in  the  earliest  periods, 
for  in  the  Senchus  Mor,  or  code  compiled  under  the  super- 
vision of  St.  Patrick,  there  is  an  allusion  to  a  judicial 
combat  long  previous,  when  Conch obar  and  Sencha,  father 
of  Brigh,  first  decreed  that  a  delay  of  five  days  should 
take  place  in  such  affairs.3     At  the  time  of  the  conversion 

appeal  to  the  sword  was  customary  among  the  Germans,  hut,  although  I  am 
diffident  in  dissenting  from  so  absolute  an  authority,  I  cannot  see  such  mean- 
ing in  the  passage.  Paterculus  merely  says  (Lib.  n.  cap.  cxviii.),  in  describ- 
ing the  stratagems  which  led  to  the  defeat  of  Varus,  "  et  solita  armis  decerni 
jure  terminarentur."  Taken  with  the  context,  this  would  appear  to  refer 
merely  to  the  law  of  the  strongest  which  prevails  among  all  savage  tribes. 

1  Qui  male  suspectam  nobis  impensius  arsit 
Vel  leto  purgare  fidem  :  qui  judice  ferro 

Diluit  immeritum  laudato  sanguine  crimen. — De  Bell.  Getico  V.  591. 

2  De  qualibet  vero  controversia  ferro  decerni  sanxit,  speciosius  viribus 
quam  verbis  confligendum  existimans. — Saxon.  Grammat.  Hist.  Dan.  Lib.  v. 

3  Senchus  Mor  I.  251. 

"  Why  is  the  distress  of  five  days  always  more  usual  than  any  other  dis- 
tress ?  On  account  of  the  combat  fought  between  two  in  Magh-inis.  When 
they  had  all  things  ready  for  plying  their  arms,  except  a  witness  alone,  they 
met  a  woman  at  the  place  of  combat,  and  she  requested  of  them  to  delay, 
saying,  'If  it  were  my  husband  that  was  there,  I  would  compel  you  to  delay.' 


THE     FRANKS.  81 

of  Ireland,  therefore,  the  duel  vras  in  ancestral  right  (Irmly 
established,  and  subject  to  precise  Legal  regulations.  Bo 
genera]  was  it.  Indeed,  that  St.  Patrick,  in  a  council  held 
in  456,  was  obliged  t<>  forbid  his  clergy  from  appealing  to 
the  sword,  under  a  threat  of  expulsion  from  the  church.1 
Towards  the  end  of  the  same  century,  King  Gundobald 
caused  the  laws  of  the  Burgundians  to  be  collected,  and 
among  them  the  wager  of  battle  occupies  so  conspicuous 
a  place  that  it  obtained  in  time  the  name  of  Lex  Gundebalda 
or  Loy  Gombette,  giving  rise  to  the  belief  that  it  originated 
with  that  race. 

In  the  ordinary  texts  of  the  Salique  law,  no  mention  is 
made  of  it,  but  in  one  manuscript  it  is  alluded  to  as  a 
regular  form  of  procedure.3  This  silence,  however,  does 
not  justify  the  conclusion  that  the  battle  ordeal  was  not 
practised  among  the  Franks.  Enough  instances  of  it  are 
to  be  found  in  their  early  history  to  show  that  it  was  by 
no  means  uncommon;3  and,  at  a  later  period,  the  same 
absence  of  reference  to  it  is  observable  in  the  Lex  Emen- 
data  of  Charlemagne,  though  the  capitularies  of  that 
monarch  frequently  allude  to  it  as  a  legal  process  in 
general  use.     The  off-shoots  of  the  Salique  law — the  Rip- 

1 1  would  delay,'  said  one  of  them,  '  but  it  would  be  prejudicial  to  the  man 
who  sues  me  ;  it  is  his  cause  that  would  be  delayed.'  '  I  will  delay,'  said 
the  other.  The  combat  was  then  put  off,  but  they  did  not  know  till  when  it 
was  put  off,  until  Conchubhur  and  Sencha  passed  judgment  respecting  it ; 
and  Sencaa  asked,  'What  is  the  name  of  this  woman?'  '  Cuicthi'  (five), 
said  she,  '  is  my  name.'  '  Let  the  combat  be  delajed,'  said  Sencha,  •  in  the 
name  of  this  woman,  for  five  days.'  From  which  is  derived  'The  truth  of 
the  men  of  the  Feini  would  have  perished,  had  it  not  been  for  Cuicthi.'  It 
is  Brigh  that  is  here  called  Cuicthi." 

1  Rebus  suis  clericus  ille  solvat  debitura  ;  nam  si  armis  compugnaverit 
cum  illo,  merito  extra  ecclesiam  computetur. — Synod.  S.  Patricii,  ann.  456, 
can.  viii. 

9  Si  tamen  non  potuerit  adprobare  .  .  .  .  et  postea,  si  ausus  fuerit,  pugnet. 
— Leyden  MS. — Capit.  Extravagant.  No.  xxviii.  of  Pardessus. 

3  Gregor.  Turon.  Hist.  Franc.  Lib.  vn.  c.  xiv.  ;  Lib.  x.  c.  x.  •  Aiuioini 
Lib.  iv.  c.  ii. 


82  THE    WAGER    OF    BATTLE. 

uarian,  Allemannic,  and  Bavarian  codes — which  were  com- 
piled by  Thierry,  the  son  of  Clovis,  revised  successively 
by  Childebert  and  Clotair  II.,  and  put  into  final  shape  by 
Dagobert  I.  about  the  year  630,  in  their  frequent  reference 
to  the  "  campus,"  show  how  thoroughly  it  pervaded  the 
entire  system  of  Germanic  jurisprudence.  The  Lombards 
were,  if  possible,  even  more  addicted  to  its  use.  Their 
earliest  laws,  compiled  by  King  Rotharis  in  643,  seventy- 
six  years  after  their  occupation  of  Italy,  make  constant 
reference  to  it,  and  the  strong  hold  which  it  then  had  on 
the  veneration  of  the  race,  as  an  ancestral  custom,  is  shown 
by  the  fruitless  efforts  of  that  legislator  and  his  successors 
to  restrict  its  employment  and  finally  to  abrogate  it.  Thus 
Rotharis  forbids  its  use  in  cases  of  importance,  substituting 
conjurators,  with  an  expression  of  disbelief,  which  shows 
how  little  confidence  was  felt  in  its  results  even  then  by 
enlightened  men.1  The  next  law-giver,  King  Grimoald, 
decreed  that  thirty  years'  possession  of  either  land  or 
liberty  relieved  a  defendant  from  maintaining  his  title  by 
battle,  the  privilege  of  employing  conjurators  being  then 
conceded  to  him.2  In  the  succeeding  century,  King  Luit- 
prand  sought  to  abolish  it  entirely,  but  finding  the  preju- 
dices of  his  people  too  strong  to  be  overcome,  he  placed 
on  record  in  the  statute  book  a  declaration  of  his  contempt 
for  it  and  a  statement  of  his  efforts  to  do  away  with  it, 
while  he  was  obliged  to  content  himself  with  limiting  the 

1  Quia  absurdum  et  iuipossibile  videtur  esse  ut  tam  grandis  causa  sub  uno 
scuto  per  pugnara  dirimatur. —  (L.  Longobard.  Lib.  II.  Tit.  Iv.  §§  1,  2,  3.) 
How  completely  this  was  at  variance  with  the  customs  of  the  Lombards  is 
evident  from  a  case  which  occurred  under  his  immediate  predecessor  Ario- 
valdus.  That  monarch  imprisoned  his  queen  Gundeberga,  a  Merovingian 
princess,  on  an  accusation  of  conspiracy  brought  against  her  by  Adalulf,  a 
disappointed  suitor.  When  Clotair  the  Great  sent  an  embassy  to  rescue  his 
fair  relative,  the  question  was  decided  by  a  single  combat  between  the  accuser 
and  a  champion  named  Pitto,  and  on  the  defeat  of  Adalulf,  the  queen  was 
pronounced  innocent  and  restored  to  the  throne  after  a  confinement  which 
had  lasted  three  years. — Aimoini  Lib.  iv.  c.  x. 

■  L.  Longobard.  Lib.  Hi  Tit.  xxxv.  §§4,  5. 


I  ii  I    a  m;  LO-I  a  I  n  SB.  83 

extent  of  its  application,  and  diminishing  the  penalties 
incurred  by  the  defeated  party.1  The  laws  of  the  Angles, 
the  Saxons,  and  the  Frisians,  likewise  bear  testimony  to 

tlu'  universality  of  the  custom.8  Even  among  the  Welsh 
it  prevailed  to  a  oonsidsrabk  extent,  and  though   Unci 

Dha,  wheU  In*  revised  their  code  in  ^14,  endeavored  to  put 
an  end  to  it,  he  was  unable  to  do  so  effectually. 

It  is  not  a  little  singular  that  the  duel  appears  to  have 
been  unknown  among  the  Anglo-Saxons.  Employed  so 
extensively  as  legal  evidence  throughout  their  ancestral 
regions,  by  the  kindred  tribes  from  which  they  sprang,  by 
the  races  among  which  they  settled,  and  by  the  Danes  and 
Norwegians  who  became  incorporated  with  them;  harmon- 
izing moreover  with  their  general  habits  and  principles  of 
action,  it  would  seem  impossible  that  they  should  not  like- 
wise have  practised  it.  That  such  was  the  case  is  one  of  the 
anomalies  which  defy  speculation ;  and  the  bare  fact  can 
only  be  stated  that  it  is  not  referred  to  in  any  of  the  Anglo- 
Saxon  or  Anglo-Danish  codes.  There  seems,  indeed,  to  be 
no  reason  to  doubt  that  its  introduction  into  English  juris- 
prudence dates  only  from  the  time  of  William  the  Con- 
queror.3 

1  Gravis  causa  nobis  esse  comparuit,  ut  sub  uno  scuto,  per  unam  pugnam, 
omnem  suam  substantiam  homo  amittat.  .  .  .  Quia  incerti  sumus  de  judicio 
Dei ;  et  multos  audivimus  per  pugnam  sine  justa  causa  suam  causam  perdere. 
Sed  propter  consuetudinem  gentis  nostrae  Longobardorum  legem  impiam 
vetare  non  possumus. — (L.  Longobard.  Lib.  I.  Tit.  ix.  §  23.)  Muratori,  how- 
ever, states  that  the  older  MSS.  read  "  legem  istam,"  in  place  of  "  impiam," 
as  given  in  the  printed  texts,  which  would  somewhat  weaken  the  force  of 
Luitprand's  condemnation. 

3  L.  Anglior.  et  Werinor.  Tit.  i.  cap.  iii.  and  Tit.  xv. — L.  Saxon.  Tit. 
xv. — L.  Frision.  Tit.  v.  c.  i.  and  Tit.  xi.  c.  iii. 

a  A  charter  issued  by  William,  which  appears  to  date  early  in  his  reign, 
give?  the  widest  latitude  to  the  duel  both  for  his  French  and  Saxon  subjects. 
— (L.  Guillelmi  Conquest.  II.  §$  1,  2,  3.  Thorpe,  I.  488.)  Another  law,  how- 
ever, enabled  a  Norman  defendant  to  decline  the  combat  when  a  Saxon  was 
appellant.  "  Si  Francigena  appellaverit  Anglum.  .  .  .  Anglus  se  defendat 
per  quod  melius  voluerit,  aut  judicio  ferri,  aut  duello.  .  .  .  Si  autem  An- 
glus Francigcnam  appellaverit  et  probare  voluerit,  judicio  aut  duello,  volo 


84  THE    WAGER    OF     BATTLE. 

The  only  other  barbarian  race  among  whose  laws  the 
battle  trial  found  no  place  was  the  Gothic,  and  here  the  ex- 
ception is  susceptible  of  easy  explanation.  The  effect  upon 
the  invaders  of  the  decaying  but  still  majestic  civilization 
of  Rome,  the  Byzantine  education  of  Theodoric,  the  leader 
of  the  Ostrogoths,  and  his  settled  policy  of  conciliating  the 
Italians  by  maintaining  as  far  as  possible  the  existing  state 
of  society,  preclude  any  surprise  that  no  allusion  to  the 
practice  should  occur  in  the  short  but  sensible  code  known 
as  the  "  Edict  of  Theodoric,"  which  shows  how  earnestly 
that  enlightened  conqueror  endeavored  to  fuse  the  invaders 
and  the  vanquished  into  one  body  politic.1  With  regard 
to  the  Wisigoths,  we  must  remember  that  early  conversion 
to  Christianity  and  long  intercourse  with  civilization  had 
already  worn  off  much  of  the  primitive  ferocity  of  a  race 
which  could  produce  in  the  fourth  century  such  a  man  as 
Ulphilas.  They  were  the  earliest  of  the  invaders  who  suc- 
ceeded in  forming  a  permanent  occupation  of  the  conquered 
territories ;  and  settling,  as  they  did,  in  Narbonensian  Gaul 
and  Spain  while  the  moral  influence  of  Rome  was  yet  all 
powerful,  the  imperial  institutions  exercised  a  much  greater 
effect  upon  them  than  on  the  subsequent  bands  of  Northern 
barbarians.  Accordingly,  we  find  their  codes  based  almost 
entirely  upon  the  Roman  jurisprudence,  with  such  modifi- 
cations as  were  essential  to  adapt  it  to  a  ruder  state  of 
society.  Their  nicely  balanced  provisions  and  careful  dis- 
tune Francigenam  purgare  se  sacramento  non  fracto." — (Ibid.  in.  §  12. 
Thorpe,  I.  493.)  Such  immunity  seems  a  singular  privilege  for  the  generous 
Norman  blood. 

1  An  epistle  from  Theodoric  to  the  Gaulish  provinces,  which  he  had  just 
added  to  his  empire,  congratulates  them  on  their  return  to  Roman  laws  and 
usages,  which  he  orders  them  to  adopt  without  delay.  Its  whole  tenor  shows 
his  thorough  appreciation  of  the  superiority  of  the  Imperial  codes  over  the 
customs  of  the  barbarians,  and  his  anxiety  for  settled  principles  of  juris- 
prudence. "Jura  publica  certissima  sunt  humanaa  vitae  solatia,  infirmorum 
auxilia,  potentum  frena.-' — (Cassiodor.  Variar.  Lib.  III.  Epist.  xvii.)  Various 
other  passages  might  be  cited  to  the  same  effect  "  Jura  veterum  ad  nostra m 
cupimus  reverentiam  custodiri,"  "  Delectamur  jure  Romano  vivere,"  etc. 


T  II  |     WISMiOTHS. 

tiuetions  offer  a  striking  ciinl  rast  to  the  shapvlv^  legisla- 
tion of  the  races  thai  followed,  and  neither  On  judicial 
eombat  nor  canonical  compurgation  Pound  a  i>la</e  in  them. 
Kvcn  the  vnlgar  ordeal  would  appear  to  have  been  unknown 
until  a  period  long  subsequent  to  the  conquest  of  Aquitaine, 
l>v  Clovis,  and  hut  little  anterior  to  their  overthrow  m 
Spain  by  the  Saracens.  That  this  apparent  exception  to 
the  prevailing  customs  of  the  barbarians  was  due,  however, 
to  their  acquiescence  in  the  enlightened  zeal  of  their  Legis- 
lators, Theodoric  and  Alaric  II.,  is  rendered  evident  by 
passages  in  Cassiodorus,  which  show  that  the  Gothic  races 
originally  followed  the  same  practices  as  the  other  savage 
tribes.1  Even  as  in  Italy  the  Lombard  domination  destn^ed 
the  results  of  Theodoric's  labors,  so  in  France  the  introduc- 
tion of  the  Frankish  element  revived  the  barbarian  instincts, 
and  in  the  celebrated  combat  before  Louis-le-Debonnaire, 
between  Counts  Bera  and  Sanila,  who  were  both  Goths,  we 
find  the  "pugna  duorum"  claimed  as  an  ancient  privilege 
of  the  race,  with  the  distinction  of  its  being  equestrian,  in 
accordance  with  Gothic  usages.3 

Nor  was  the1  waiter  of  battle  confined  to  races  of  Celtic 
or  Teutonic  origin.  The  Slavonic  tribes,  as  they  success- 
ively emerge  into  the  light  of  history,  show  the  same  ten- 
dency to  refer  doubtful  points  of  civil  and  criminal  law  to 
the  arbitrament  of  the  sword.      The  earliest  records  of 

1  In  sending  Colosseus  to  govern  the  Pannonian  Goths,  Theodoric  urges 
strongly  the  abandonment  of  the  duel,  showing  how  firm  a  hold  it  still  re- 
tained in  those  portions  of  the  race  which  had  not  been  exposed  to  the  full 
civilizing  influences  of  Rome — "  Cur  ad  monomachiam  recurritisqui  venalem 
judicem  non  habetis  ?  Deponite  ferrum  qui  non  habetis  inimicum.  Pessime 
contra  parentes  erigitis  brachium,  pro  quibus  constat  gloriose  moriendum. 
Quid  opus  est  homini  lingua,  si  causam  manus  agat  armata  ?  aut  unde  pax 
esse  creditur,  si  sub  civilitate  pugnatur?" — Cassiodor.  Variar.  Lib.  in. 
Bpist.  xxiii.  xxiv. 

"  Ermold.  Nigell.  De  Reb.  Gest.  Ludov.  Pii  Lib.  III. — Astron.  Vit.  Ludov. 
Pii  cap.  xxxiii.  So  thoroughly  was  the  guilt  of  Bera  considered  as  proved 
by  his  defeat  in  this  combat,  that  his  name  became  adopted  in  the  Catalan 
dialect  as  synonymous  with  traitor. — Marca  Hispanica,  Lib.  in.  c.  21. 

8 


86  THE     WAGER    OF    BATTLE. 

Hungary,  Bohemia,  Poland,  Servia,  Silesia,  Moravia,  Pom- 
erania,  Lithuania,  and  Russia  present  evidences  of  the  pre- 
valence of  the  system.1 

Arising  thus  spontaneously  from  the  habits  and  character 
of  so  many  races,  it  is  no  wonder  that  the  wager  of  battle, 
adapting  itself  to  their  various  usages,  became  a  permanent 
institution.  Its  roots  lay  deep  among  the  recesses  of  popu- 
lar prejudice  and  superstition,  and  its  growth  was  corre- 
spondingly strong  and  vigorous.  In  this  it  was  greatly 
assisted  by  the  ubiquitous  evils  of  the  facility  for  perjury 
afforded  by  the  practice  of  sacramental  purgation,  and  it 
seems  to  have  been  regarded  by  legislators  as  the  only 
remedy  for  the  crime  of  false  swearing  which  was  every- 
where prevalent.  Thus  Gundobald  assumes  that  its  intro- 
duction into  the  Burgundian  code  arose  from  this  cause  ;2 
Charlemagne  urged  its  use  as  greatly  preferable  to  the 
shameless  oaths  which  were  taken  with  so  much  facility  ;3 
while  Otho  II.,  in  983,  ordered  its  employment  in  various 
forms  of  procedure  for  the  same  reason.4  It  can  hardly 
be  a  source  of  surprise,  in  view  of  the  manners  of  the 
times  and  of  the  enormous  evils  for  which  a  remedy  was 
sought,  that  the  effort  was  made  in  this  mode  to  impress  upon 

1  Konigswarter,  op.  cit.  p.  224. 

2  Multos  in  populo  nostro  et  pervicatione  causantium  et  cupiditatis  in- 
stinctu  ita  cognoscimus  depravari,  ut  de  rebus  incertis  sacramentum  plerum- 
que  offere  non  dubitent,  et  de  cognitis  jugiter  perjurare,"  etc. — L.  Burgund. 
Tit.  xlv. 

The  remedy,  however,  would  seem  to  have  proved  insufficient,  for  a  subse- 
quent enactment  provides  an  enormous  fine  (300  solidi)  to  be  levied  on  the 
witnesses  of  a  losing  party,  by  making  them  share  in  the  punishment.  "Quo 
facilius  in  posterum  ne  quis  audeat  propria  pravitate  mentire." — L.  Bur- 
gund. Tit.  Ixxx.  §  2.  The  position  of  a  witness  in  those  unceremonious  days 
was  indeed  an  unenviable  one. 

3  Ut  palam  apparet  quod  aut  ille  qui  crimen  ingerit,  aut  ille  qui  vult  se 
defendere,  perjurare  se  debeat.  Melius  visum  est  ut  in  campo  cum  fustibus 
pariter  contendant,  quam  perjurium  absconse  perpetrent. — Capit.  Car.  Mag. 
ex  Lege  Longobard.  c.  xxxiv.  (Baluze). 

4  L.  Longobard.  Lib.  n".  Tit.  Iv.  $  34. 


ITS    UNIV1R8AL    A  II-  LIC  ATI  ON.  81 

principals  and  witnesses  the  awful  sanctity  of  the  oath,  1 1ms 

subjecting  them  to  :i  liability  t<>  support  their  ji  ^several  ions 

by  an  appeal  to  arms  under  imposing  religious  ceremonies. 

Iii  the  primitive  codes  of  the  barbarians,  there  is  no 

distinction  made  between  civil  and  criminal  law.  Bodily 
punishment  being  almost  unknown,  except  with  regard  to 
slaves,  and  nearly  all  infractions  of  the  law  being  visited 
with  tines,  there  was  no  necessity  for  such  niceties,  the 
matter  at  stake  in  all  cases  being  simply  money  or  money's 
worth.  Accordingly,  we  find  the  wager  of  battle  used  in- 
discriminately, both  as  a  defence  against  accusations  of 
crime,  and  as  a  mode  of  settling  cases  of  disputed  property, 
real  and  personal.  This  gave  it  a  wide  sphere  of  action, 
which  was  speedily  rendered  almost  illimitable  by  other 
causes. 

vIn  its  origin,  the  judicial  duel  was  doubtless  merely  an 
expedient  resorted  to  in  the  absence  of  direct  or  sufficient 
testimony,  and  the  judges  or  rachinborgs  were  probably 
the  arbiters  of  its  necessity.  Some  of  the  early  codes  refer 
to  it  but  seldom,  and  allude  to  its  employment  in  but  few 
cases.1  In  others,  however,  it  is  appealed  to  on  almost 
every  occasion.  Among  the  Burgundians,  in  fact,  we  may 
assume,  from  a  remark  of  St.  Agobard,  that  it  superseded 
all  evidence  and  rendered  superfluous  any  attempt  to  bring 
forward  witnesses.2  If  any  limits,  indeed,  were  originally 
imposed,  they  were  not  of  long  duration,  for  it  was  not 
difficult  to  find  expedients  to  justify  the  extension  of  a 
custom  which  accorded  so  perfectly  with  the  temper  of  the 
age.     How  little  reason  was  requisite  to  satisfy  the  bellige- 

1  Thus  the  Salique  law,  as  has  been  said  above,  hardly  recognizes  the 
existence  of  the  practice.  The  Ripuarian  code  refers  to  it  but  four  times, 
that  of  the  Alamanni  but  six  times,  while  it  fairly  bristles  throughout  the 
cognate  legislation  of  the  Baioarians. 

2  Apud  quorum  legem  non  licet  discussione  aut  veracium  testimonio 
causas  terminare  ;  eo  quod  libuerit,  armis  comminari  liceat,  ne  infirmior 
sua  retinere  aut  reposcere  audeat,  tanquam  Veritas  armis  manifestari  egeat. 

Lib.  Adversus  Legem  Gundobadi  cap.  x. 


88  THE    WAGER    OF    BATTLE. 

rent  aspirations  of  justice  is  shown  by  a  curious  provision 
in  the  code  of  one  of  the  Frisian  tribes,  by  which  a  man 
unable  to  disprove  an  accusation  of  homicide  was  allowed 
to  charge  the  crime  on  whomsoever  he  might  select,  and 
then  the  question  between  them  was  decided  by  combat.1 
x  ■  The  mode,  however,  by  which  the  duel  gained  its  greatest 
extension  was  the  custom  of  challenging  witnesses.  It 
was  a  favorite  mode  of  determining  questions  of  perjury, 
and  there  was  nothing  to  prevent  a  suitor,  who  saw  his  case 
going  adversely,  from  accusing  an  inconvenient  witness  of 
false  swearing,  and  demanding  the  "  campus"  to  prove  it — 
a  proceeding  which  adjourned  the  main  case,  and  likewise 
decided  its  result.  This  summary  process  of  course  brought 
every  action  within  the  jurisdiction  of  force,  and  deprived 
the  judges  of  all  authority  to  control  the  abuse.  That  it 
obtained  at  a  very  early  period  is  shown  by  a  form  of  pro- 
cedure occurring  in  the  Bavarian  law,  already  referred  to, 
by  which  the  claimant  of  an  estate  is  directed  to  fight,  not 
the  defendant,  but  his  witness  ;3  and  in  819  a  capitulary  of 
Louis-le-Debonnaire  gives  ^a  formal  privilege  to  the  accused 
on  a  criminal  charge  to  select  one  of  the  witnesses  against 
him  with  whom  to  decide  the  question  in  battle.3 

Nor  was  this  merely  a  temporary  extravagance.  Late 
in  the  thirteenth  century,  after  enlightened  legislators  had 
been  strenuously  and  not  unsuccessfully  endeavoring  to 
limit  the  abuse  of  the  judicial  combat,  the  challenging  of 
witnesses  was  still  the  favorite  mode  of  escaping  legal  con- 
demnation.4   Even  in  the  fourteenth  century,  the  municipal 

1  L.  Frision.  Tit.  xiv.  §4.  s  L.  Baioar.  Tit.  xvi.  cap.  i.  §  2. 

3  At  si  alia  vice  duo  vel  tres  eum  de  f  urto  accusaverint,  liceat  ei  unum  ex  his 
cum  scuto  et  fuste  in  campo  contendere. — (Capit.  Ludov.  Pii  ann.  819,  cap. 
xv.)  When  such  was  the  liability  impending  over  witnesses,  it  is  easy  to  under- 
stand why  they  were  required  to  come  into  court  armed,  and  to  have  their 
weapons  blessed  on  the  altar  before  giving  testimony.  If  defeated,  they  were 
fined  and  obliged  to  make  good  any  damage  which  their  evidence  would 
have  caused  the  other  side. — L.  Baioar.  Tit.  xvi.  c.  v. 

4  Beaumanoir,  Coutumos  du  Beauvoisis,  chap.  Ixi.  \  58. 


CHALLENGING    01    WITNESSES.  89 

l:iw  of  Rheims,  which  allowed  the  doe]  between  principals 
only  in  criminal  cases,  permitted  witnesses  to  be  Indiscrimi- 
nately challenged  and  forced  t<>  fight,  affording  them  the 
privilege  of  employing  champions  only  on  the  grounds  of 
physical  Infirmity  <>r  advanced  age.1  A  still  more  bizarre 
extension  of  the  practice,  and  one  which  was  most  ingeni- 
ously adapted  to  defeat  the  ends  of  justice,  is  found  in  the 
English  law  of  the  thirteenth  century.  By  this,  a  man  was 
sometimes  permitted  to  challenge  his  own  witnesses.  Thus 
a  thief  on  trial  could  always  summon  a  "warrantor"  from 
whom  he  claimed  to  have  legitimately  received  the  stolen 
property,  and  if  this  warrantor  declined  to  give  the 
guarantee  demanded  of  him,  the  accused  was  at  liberty  to 
prove  his  assertion  by  the  duel ;  while,  if  the  guarantee  was 
forthcoming,  the  accuser  had  the  same  right.8  Another 
mode  extensively  used  in  France  about  the  same  time  was 
to  accuse  the  principal  witness  of  some  crime  rendering  him 
incapable  of  giving  testimony,  when  he  was  obliged  to  dis- 
pose of  the  charge  by  fighting,  either  personally  or  by 
champion,  in  order  to  get  his  evidence  admitted.3 

It  is  not  easy  to  imagine  any  cases  which  might  not  thus 
be  brought  to  the  decision  of  the  duel ;  and  the  evidence  of 
its  universality  is  found  in  the  restriction  which  prevented 
the  appearance  as  witnesses  of  those  who  could  not  be  com- 
pelled to  accept  the  combat.  Thus  the  testimony  of  women 
and  ecclesiastics  was  not  receivable  in  lay  courts  in  suits 
where   appeal   of  battle   might  arise;4  and  when   in   the 

1  Lib.  Pract.  de  Consuetud.  Remens.  §§  14,  40  (Archives  L6gislat.  de 
Reims,  Pt.  I.  pp.  37,  40). 

*  Bracton.  de  Legibus  Angl.  Lib.  in.  Tract,  n.  cap.  xxxvii.  §  5. 

3  Beaumanoir,  chap.  vi.  §  16. 

4  Ibid.  chap,  xxxix.  §§  30,  31,  66. — Assises  de  Jerusalem  cap.  169. — A 
somewhat  similar  principle  is  in  force  in  the  modern  jurisprudence  of  Clina. 
Women,  persons  over  eighty  or  under  ten  years  of  age,  and  cripples  who  have 
lost  an  eye  or  a  limb  are  entitled  to  buy  themselves  off  from  punishment, 
except  in  a  few  cases  of  aggravated  crime.  They  are,  therefore,  not  allowed 
to  appear  as  accusers,  because  they  are  enabled  by  this  privilege  to  escape 

8* 


90  THE    WAGER    OF    BATTLE. 

twelfth  century  special  privileges  were  granted  by  the  kings 
of  France  empowering  serfs  to  bear  testimony  in  court,  the 
disability  which  prevented  a  serf  from  fighting  with  a  free- 
man was  declared  annulled  in  such  cases,  as  the  evidence 
was  only  admissible  when  the  witness  was  capable  of  sup- 
porting it  by  arms.1 

The  result  of  this  system  was  that,  in  causes  subject  to 
such  appeals,  no  witness  could  be  forced  to  testify,  by  the 
French  law  of  the  thirteenth  century,  unless  his  principal 
entered  into  bonds  to  see  him  harmless  in  case  of  challenge, 
to  provide  a  champion,  and  to  make  good  all  damages  in 
case  of  defeat;2  though  it  is  difficult  to  understand  how 
this  could  be  satisfactorily  arranged,  since  the  penalties  in- 
flicted on  a  vanquished  witness  were  severe,  being,  in  civil 
causes,  the  loss  of  a  hand  and  a  fine  at  the  pleasure  of  the 
suzerain,  while  in  criminal  actions  "il  perderoit  le  cors 
avecques."3  The  only  limit  to  this  abuse  was  that  wit- 
nesses were  not  liable  to  challenge  in  cases  concerning 
matters  of  less  value  than  five  sous  and  one  denier.4 

If  the  position  of  a  witness  was  thus  rendered  unenviable, 
that  of  the  judge  was  little  better.  As  though  the  duel  had 
not  received  sufficient  extension  by  the  facilities  for  its  em- 
ployment just  described,  another  mode  of  introducing  it  in 
all  cases  was  invented  by  which  it  became  competent  for 
the  defeated  party  in  any  suit  to  challenge  the  court  itself, 
and  thus  obtain  a  reversal  of  judgment  at  the  sword's 
point.  Towards  the  end  of  the  twelfth  century  in  England, 
we  find  Glanville  acknowledging  his  uncertainty  as  to 
whether  the  court  could  depute  such  a  quarrel  to  a  cham- 

the  penalties  of  false  witness. — Staunton,  Penal  Code  of  China,  Sects.  20-22, 
and  339. 

1  The  earliest  of  these  charters  is  a  grant  from  Louis-le-Gros  in  1109  to  the 
serfs  of  the  church  of  Paris,  confirmed  by  Pope  Pascal  II.  in  1113.  (Baluz. 
etMansi  III.  12,  62.) 

2  Beaumanoir,  chap.  Ixi.  §  59. 

3  Ibid.  chap.  Ixi.  §  57. 

4  Ibid.  chap.  xl.  §  21. 


CHALLENGING    OF    JUDGES.  (.H 

pion,  or  whether  the  judge  delivering  tit**  verdict  was  bound 
to  defend  it  personally  ;  :tn<l  also  as  to  what,  in  case  of  defeat, 

was  the  legal  position  of  the  court  thus  convicted  of  injus- 
tice.1   These  doubts  would  seem  to  indicate  that  the  custom 

was  still  of  recent  int  roduet  ion,  sad  not  as  yet  practised  to 
an  extent  sufficient  to  afford  a  settled  basis  of  precedents 
for  its  details.  If  so,  it  was  not  long  in  firmly  establishing 
itself.  In  1195,  the  customs  of  St.  Quentin  allow  to  the 
disappointed  pleader  Unlimited  recourse  against  his  Judge.' 
Towards  the  middle  of  the  thirteenth  century,  we  find  in 
the  "  Conseil"  of  Pierre  de  Fontaines  the  custom  in  its 
fullest  vigor  and  just  on  the  eve  of  its  decline.  No  rest  ric- 
tions  appear  to  be  imposed  as  to  the  cases  in  which  appeal 
by  battle  was  permitted,  except  that  it  was  not  allowed  to 
override  the  customary  law.3  The  suitor  selected  any  one 
of  three  judges  agreeing  in  the  verdict ;  he  could  appeal  at 
any  stage  of  the  proceedings  when  a  point  was  decided 

1  "Curia  .  .  .  tenetur  tamen  judicium  suum  tueri  per  duellum  .  .  .  Sed 
utrum  curia  ipsa  teneatur  per  aliquem  de  curia  se  defendere,  vel  per  alium 
extraneum  hoc  fieri  possit,  quero." — (De  Leg.  Anglia)  Lib.  viii.  cap.  ix.) 
The  result  of  a  reversal  of  judgment  must  probably  have  been  a  heavy  fine 
and  deprivation  of  the  judicial  function,  such  being  the  penalty  provided  for 
injustice  in  the  laws  of  Henry  I. — "  Qui  injuste  judicabit,  exx  sol.  reus  sit  et 
dignitatem  judicandi  perdat."— (L.  Henrici  I.  Tit.  xiii.  §  4)— which  accords 
nearly  with  the  French  practice  in  the  time  of  Beaumanoir,  as  mentioned 
below. 

It  must  be  borne  in  mind  that,  as  the  dispensing  of  justice  was  an  attribute 
of  the  feudal  nobility,  the  judges  were  generally  warriors  (except  the  royal 
judges  in  England,  who  were  frequently  ecclesiastics),  and  thus  these  pro- 
ceedings were  not  as  extraordinary  as  they  may  at  first  sight  appear  to  us. 
In  Germany,  where  the  judges  of  the  lower  courts  were  elective,  they  were 
required  to  be  active  and  vigorous  of  body — "nee  manibus  nee  pedibus 
captus." — (Jur.  Provin.  Alaman.  cap.  lxviii.  §  6.) 

-  Si  ille  contra  quern  fit  judicium  non  concedit  illud  judicium,  per  campum 
et  duellum  poterit  illud  contradicere  intra  villain  S.  Quintini,  contra  illos 
qui  judicium  fecerint.— Cited  by  Marnier  in  his  edition  of  Pierre  de  Fon- 
taines. 

3  Car  poi  profiteroient  les  costumes  el  pais,  s'il  s'en  covenoit  combatre  ; 
ne  depecier  ne  les  puet-om  par  bataille. — Kdition  Marnier,  chap.  xxn.  Tit. 
xxxii. 


92  THE    WAGER    OP    BATTLE. 

against  him ;  if  unsuccessful,  he  was  only  liable  in  a  pecu- 
niary penalty  to  the  judges  for  the  wrong  done  them,  and 
the  judge,  if  vanquished,  was  exposed  to  no  bodily  punish- 
ment.1 The  villein,  however,  was  not  entitled  to  the  privi- 
lege, except  by  special  charter.3  The  universality  of  the 
practice  is  shown  by  the  fact  that  it  was  for  a  long  time  the 
only  mode  of  reversing  a  judgment,  and  an  appeal  in  any 
other  form  was  an  innovation  introduced  by  the  extension 
of  the  royal  jurisdiction  under  St.  Louis,  who  labored  so 
strenuously  and  so  effectually  to  modify  the  barbarism  of 
feudal  institutions  by  subordinating  them  to  the  principles 
of  the  Roman  jurisprudence.  De  Fontaines,  indeed,  states 
that  he  himself  conducted  the  first  case  ever  known  in 
Yermandois  of  an  appeal  without  battle.3  At  the  same 
time,  the  progress  of  more  rational  ideas,  is  manifested  by 
his  admission  that  the  combat  was  not  necessary  to  reverse 
a  judgment  manifestly  repugnant  to  the  law,  and  that,  on 
the  other  hand,  the  law  was  not  to  be  set  aside  by  the 
duel. 

Twenty  years  later,  we  find  in  Beaumanoir  abundant  evi- 
dence of  the  success  of  St.  Louis  in  setting  bounds  to  the 
abuses  which  he  was  endeavoring  to  remove.  The  restric- 
tions which  he  enumerates  are  greatly  more  efficacious  than 
those  alluded  to  by  de  Fontaines.     In  capital  cases,  the 

1  Chap.  xxn.  Tit.  i.  vi.  viii.  x.  xxvii.  xxxi. — "Et  certes  en  fausement  tie 
gist  ne  vie  ne  membre  de  eels  qui  sont  fause,  en  quelconque  point  que  le  fause- 
ment soit  faiz,et  quele  que  laquerele  soit" — (Ibid.  Tit.  xiv.).  If  the  judge  was 
accused  of  bribery,  however,  and  was  defeated,  he  was  liable  to  confiscation 
and  banishment  (Tit.  xxvi.).  The  increasing  severity  meted  out  to  careless, 
ignorant,  or  corrupt  judges,  manifests  the  powerful  influence  of  the  Roman 
law,  which,  aided  by  the  active  efforts  of  legists,  was  infiltrating  the  customary 
jurisprudence  and  altering  its  character  everywhere.  Thus  de  Fontaines 
quotes  with  approbation  the  Code,  De  poena  judicis  (Lib.  VII.  Tit.  xlix.  1.  1) 
as  a  thing  rather  to  be  desired  than  expected,  while  in  Beaumanoir  we 
already  find  its  provisions  rather  exceeded  than  otherwise. 

3  De  Fontaines,  chap.  XXII.  Tit.  iii. 
Ibid.  Tit   xxiii. — Et  ce  fu  li  premiers  dont  je  oisse  onques  parler  qui  fust 
rapelez  en  Verraandois  sanz  bataille. 


CHALLENGING    OF    JUDGES.  98 

appeal  did  not  lie;  while  to  civil  ad  ions,  the  suzerain  before 
whom  the  appeal  was  made  could  refuse  it  when  the  justice 
of  the  verdict  was  Belf-eviderit.  Some  caution,  moreover, 
was  requisite  in  conducting  such  cases,  for  the  disappointed 

pleader  who  did  not  manage  matters  rightly  might  find  him- 
self pledged  to  a  combat,  single-handed,  with  all  his  judges 
at  once;  and  as  the  bench  consisted  of  a  collection  of  the 
neighboring  gentry,  the  result  might  be  the  confirmation 
of  the  sentence  in  a  manner  more  emphatic  tban  agreeable. 
An  important  change  is  likewise  observable  in  the  severe 
penalty  imposed  upon  a  judge  vanquished  in  such  an  ap- 
peal, being  a  heavy  fine  and  deprivation  of  his  functions  in 
civil  eases,  while  in  criminal  ones  it  was  death  and  confis- 
cation— "il  pert  le  cors  et  quanques  il  a."1 

The  king'sjpourt,  however,  was  an  exception  to  the  gene- 
ral rule.  Xo  appeal  could  be  taken  from  its  judgments,  for 
there  was  no  tribunal  before  which  they  could  be  carried.3 
The  judges  of  the  royal  court  were  therefore  sale  from  the 
necessity  of  vindicating  their  decisions  in  the  field,  and 
they7 even  carried  this  immunity  with  them  and  communi- 
cated it  to  those  with  whom  they  might  be  acting.  De 
Fontaines  accordingly  advises  the  seigneur  justicier  who 
anticipates  the  appeal  of  battle  in  his  court  to  obtain  a  royal 
judge  to  sit  with  him,  and  mentions  an  instance  in  which 
Philip  (probably  Philip  Augustus)  sent  his  whole  council 
to  sit  in  the  court  of  the  Abbey  of  Corbie,  when  an  appeal 
was  to  be  entered.3 

By  the  German  law  of  the  same  period,  the  privilege  of 

1  Coutumes  du  Beauvoisis,  chap.  lxi.  §§  36,  45,  47,  50,  62. — It  should  be 
borne  in  mind,  however,  that  Beaumanoir  was  a  royal  bailli,  and  the  differ- 
ence between  the  "assise  de  bailli"  and  the  "assises  des  chevaliers"  is  well 
pointed  out  by  Beugnot  (Les  Olira,  T.  II.  pp.  xxx.  xxxi.).  Beaumanoir  in 
many  cases  evidently  describes  the  law  as  he  would  wish  it  to  be. 

2  Et  pour  ce  ne  Ten  puet  fausser,  car  Ten  ne  trouveroit  mie  qui  droit  en 
feist  car  li  rois  ne  tient  de  nului  fors  de  Dieu  et  de  luy. — Etablissements, 
Liv.  i.  chap,  lxxviii. 

3  Cunseil,  ch.  xxn    tit.  xxi. 


94  THE    WAGER    OF    BATTLE. 

reversing  a  sentence  by  the  sword  existed,  but  accompanied 
with  regulations  which  seem  evidently  designed  to  embar- 
rass, by  enormous  trouble  and  expense,  the  gratification 
of  the  impulse  which  disappointed  suitors  would  have  to 
establish  their  claims  in  such  manner.  Thus,  by  the  Swa- 
bian  law,  it  could  only  be  done  in  the  presence  of  the 
sovereign  himself,  and  not  in  that  of  the  immediate  feudal 
superior  j1  while  the  Saxon  code  requires  the  extraordinary 
expedient  of.  a  pitched  battle,  with  seven  on  each  side.2  It 
is  not  a  little  singular  that  the  feudal  law  of  the  same 
period  has  no  allusion  to  the  custom,  all  appeals  being 
regularly  carried  to  and  heard  in  the  court  of  the  suzerain.3 
Apart  from  these  side  issues,  the  right  of  demanding  the 
wager  of  battle  as  between  the  principals  varied  much  with 
the  age  and  race.  When  Beaumanoir  composed  his  "  Con- 
tinues du  Beauvoisis,"  in  1283,  the  practice  may  be  con- 
sidered to  have  entered  upon  its  decadence ;  twenty  years 
had  elapsed  since  the  determined  efforts  of  St.  Louis  to 
abolish  it ;  substitutes  for  it  in  legal  processes  had  been 
provided;  and  the  manner  in  which  that  enlightened  jurist 
manifests  his  preference  for  peaceful  forms  of  law  shows 
that  he  fully  appreciated  the  civilizing  spirit  in  which  the 
monarch  had  endeavored  to  soften  the  ferocity  of  his  sub- 

1  Si  eontingat  ut  de  justitia  sententiae  pugnandura  sit,  ilia  pugna  debet 
institui  coram  rege — (Jur.  Provin.  Alaman.  cap.  xcix.  §5).  In  a  French 
version  of  this  code,  made  probably  towards  the  close  of  the  fourteenth  cen- 
tury, the  purport  of  this  passage  is  entirely  changed.  ' '  De  chascun  iugemant 
ne  puet  Ian  trover  leaul  ne  certain  consoil  si  bien  come  per  lo  consoil  de 
sages  de  la  cort  lo  roi." — Miroir  de  Souabe,  P.  I.  c.  cxiii.  (Ed.  Matile,  Neuf- 
chatel,  1843).  We  may  hence  conclude  that  by  this  period  the  custom  of 
armed  appeal  was  disused,  and  the  extension  of  the  royal  jurisdiction  was 
established. 

2  Jur.  Provin.  Saxon.  Lib.  i.  art.  18. — This  has  been  questioned  by  modern 
critics,  but  there  seems  to  be  no  good  reason  for  doubting  its  authority.  The 
whole  formula  for  the  proceeding  is  given  in  the  Richstich  Landrecht  (cap. 
41),  a  manual  of  procedure  of  the  fourteenth  century,  adapted  to  the  Saxon 
code. 

3  Richstich  Lehnrecht,  cap.  xxvii. 


RESTRICTIONS    ON    THE    DUEL.  95 

jects.  When,  therefore,  we  sec  in  I>eaumanoir\s  treatise 
how  few  restrictions  existed  in  liis  time,  we  may  compre- 
hend the  previous  universality  of  the  custom.  In  criminal 
cases,  if  an  accuser  offered  battle,  the  defendant  was  forced 
either  to  accept  it  or  to  confess  his  guilt,  unless  he  could 
prove  an  alibi,  or  unless  the  accuser  was  himself  notoriously 
guilty  of  the  crime  in  question,  and  the  accusation  wms 
evidently  a  mere  device  to  shift  the  guilt  to  the  shoulders 
of  another;  or  unless,  in  case  of  murder,  the  victim  had 
disculpated  him,  when  dying,  and  had  named  the  real 
criminals.*  If,  on  the  other  hand,  the  accused  demanded 
to  wage  his  battle,  the  judge  could  only  refuse  it  when  his 
guilt  was  too  notorious  for  question.3  A  serf  could  not 
challenge  a  freeman,  nor  a  bastard  a  man  of  legitimate 
birth  (though  an  appeal  of  battle  might  lie  between  two 
bastards),  nor  a  leper  a  sound  man.3  In  civil  actions,  the 
battle  trial  was  not  allowed  in  cases  relating  to  dower,  to 
orphans  under  age,4  to  guardianships,  or  to  the  equity  of 
redemption  afforded  by  the  feudal  laws  to  kinsmen  in  the 
sale  of  heritable  property,  or  where  the  matter  at  stake  was 
of  less  value  than  twelve  deniers.5  St.  Louis  also  prohibited 
the  duel  between  brothers  in  civil  cases,  while  permitting 
it  in  criminal  accusations.6  The  slenderness  of  these  re- 
strictions shows  what  ample  opportunities  were  afforded 
to  belligerent  pleaders. 

In  Germain,  as  a  general  rule,  either  party  had  a  right  to 
demand  the  judicial  combat,7  subject,  however,  in  practice 

1  Coutumes  du  Beauvoisis,  chap.  lxi.  §  2 ;  chap,  xliii.  §  6. 
-  Ibid.  chap.  lxi.  §  2  ;  chap,  xxxix.  §  12. 

3  Ibid.  chap.  Ixiii.  §§  1,  2,  10. 

4  Twenty-one  years  is  the  age  mentioned  by  St.  Louis  as  that  at  which  a 
man  was  liable  to  be  called  upon  to  fight. — Etablissements,  Liv.  I.  chap. 
lxxiii..  cxlii. 

s  Coutumes  du  Beauvoisis,  chap.  Ixiii.  §§  11,  13,  18.  The  denier  was  the 
twelfth  part  of  the  solidus  or  sou. 

c  Etablissements,  Liv.  i.  chap,  clxvii. 

1  Jur.  Provin.  Alaman.  cap.  clxvi.  §§  13,  27;  cap.  clxxvii. 


96  THE    WA^E  It,   OF     BATTLE.         ; 

to  several  important  limitations.  Thus  difference  of  rank" 
between  the  parties  afforded  the  superior  a  right  to  decline 
a  challenge,  as  we  shall  see  more  fully  hereafter.1  Rela- 
tionship between  the  contestants  was  also  an  impediment,3 
and  even  the  fact  that  the  defendant  was  not  a  native  of 
the  territory- in  which  the  action  was  brought  gave  him  the 
privilege  of  refusing  the  appeal.3  Still,  we  find  the  principle 
laid  down  even  in  the  fourteenth  century  that  cases  of 
homicide  could  not  be  determined  in  any  other  manner.4 
There,  were  circumstances,  indeed,  in  which  the  complain- 
ant, if  he  could  bring  the  evidence  of  seven  witnesses  in  his 
favor,  could  decline  the  duel ;  but  if  he  chose  to  prove  the 
charge  by  the  combat,  no  examination  or  testimony  was 
admitted.5  Yet  a  general  rule  is  found  expressed  to  the 
effect  that  it  was  necessary  only  in  cases  where  no  other 
evidence  was  obtainable,  when  the  result  could  be  safely 
left  to  the  judgment  of  Omniscience.6 

By  the  English  law  of  the  thirteenth  century,  a  man 
accused  of  crime  had  the  right  of  election  between  trial 
Dv  Jury  an(i  the  wager  of  battle  in  doubtful  cases  only. 
When  a  violent  presumption  existed  against  him,  he  was 
obliged  to  submit  to  the  verdict  of  a  jury;  but  in  cases  of 
suspected  poisoning,  as  satisfactory  evidence  was  deemed 
unattainable,  the  accused  had  only  the  choice  between  con- 

1  As  early  as  the  time  of  Frederic  Barbarossa  this  rule  was  strictly  laid 
down.  "Si  miles  adversus  militem  pro  pace  violata  aut  aliqua  eapitali  causa 
duellum  committere  voluerit,  facultas  pugnandi  ei  non  concedatur  nisi  pro- 
bare  possit  quod  antiquitus  ipse  cum  parentibus  suis  natione  legitimus  miles 
existat." — Feudor.  Lib.  II.  Tit.  xxvii.  §3. 

3  Jur.  Provin.  Alaman.  cap.  ccclxxxvi.  §  2. 

3  Ibid.  cap.  ccxcii.  §  2. 

4  Sed  scias  si  de  perpetrato  homicidio  agitur,  probationem  sine  duello  non 
procedere. — Richstich  Landrecht,  cap.  xlix. 

s  Jur.  Provin.  Alaman.  cap.  ccclxxxvi.  §§  28,  29  (Ed.  Schilteri). 

G  Hinc  pervenit  dispositio  de  duello.  Quod  enim  homines  non  vident  Deo 
nihilominus  notum  est  optime,  unde  in  Deo  confidere  possumus,  eum  duellum 
secundum  jus  diremturum. — Jur.  Provin.  Alaman.  cap.  clxviii.  §  19  (Ed. 
Senckenberg). 


RESTRICTIONS    UN     THE    DUEL.  97 

fession   and   the  combat.1     On    t hi'   other  hand,  when   the 

appellant  demanded  the  duel,  he  was  obliged  to  make  out 
a  probable  case  before  it  was  granted."  When  battle  h:i<l 
been  gaged,  however,  no  withdrawal  was  permitted,  and 
any  composition  bet  ween  the  parties  to  avoid  it  was  punish- 
able by  line  and  imprisonment' — a  regulation,  no  doubt, 
intended  to  prevent  pleaders  from  rashly  undertaking  it, 
and  to  obviate  its  abuse  as  a  means  of  extortion.  Any 
bodily  injury  on  the  part  of  the  plaintiff,  tending  to  render 
him  less  capable  of  defence  or  aggression,  likewise  deprived 
the  defendant  of  the  right  to  the  wager  of  battle,  and  this 
led  to  such  nice  (list  tactions  that  the  loss  of  molar  teeth  was 
adjudged  not  to  amount  to  disqualification,  while  the 
absence  of  incisors  was  considered  sufficient  excuse,  be- 
cause they  were  held  to  be  important  weapons  of  offence.4 
Thus  the  knight  who  demanded  that  his  antagonist  should 
undergo  the  destruction  of  an  e}^e  to  equalize  the  loss 
of  his  own,  extinguished  in  the  fight  of  Otterbourne,  was 
strictly  within  the  privileges  accorded  him  by  law.  Not- 
withstanding  these  various  restrictions,  cases  of  treason 
Were  almost  alwa3Ts  determined  by  the  judicial  duel,  ac- 
cording to  both  Glanville  and  Bracton.5     This  was  in  direct 

1  Bracton.  Lib.  m.  Tract,  ii.  cap.  IS.  2  Ibid.  cap.  23  §  1. 

3  Si  autem  uterque  defaltam  fecerit,  et  testatum  sit  quod  concordati 
fuerunt,  uterque  capiatur,  et  ipsi  et  plegii  sui  in  miser icordia. — Ibid. 

The  custom  with  regard  to  this  varied  greatly  according  to  local  usage. 
Thus  a  charter  of  the  Count  of  Forez  in  1270  concedes  the  right  of  avoiding 
battle,  even  at  the  last  moment,  by  satisfying  the  adversary,  and  paying  a 
fine  of  sixty  sols. — Chart.  Itaynaldi  Com.  Forens.  c.  4  (Bernard,  Hist,  du 
Forez,  T.  I.  Preuves,  p.  25).  According  to  the  customs  of  Lorris,  in  1155, 
if  a  composition  was  effected  after  battle  had  been  gaged  and  before  security 
was  given,  each  party  paid  a  fine  of  two  sous  and  a  half.  If  after  security 
was  pledged,  the  fine  was  increased  to  seven  sous  and  a  half. — Chart.  Ludov. 
Junior,  ann.  1155,  cap.  xiv.     (Isambert,  Anciennes  Lois  Francaises,  I.  155.) 

1  Bracton.  Lib.  in.  Tract,  ii.  cap.  24  §  4. — Hujusmodi  vero  dentes  mul- 
tum  adjuvant  ad  devincendum. 

5  Glanvil.  Lib.  xiv.  cap.  i. — Bracton.  Lib.'  III.  Tract,  ii.  cap.  3  §  1. 
Solet  appellum  istud  per  duellum  terminari. 

9 


98  THE    WAGER    OF    BATTLE. 

opposition  to  the  custom  of  Lombardy,  where  such  cases 
were  especially  exempted  from  decision  by  the  sword.1 

In  Beam,  the  duel  was  permitted  at  the  option  of  the 
accuser  in  cases  of  murder  and  treason,  but  in  civil  suits 
only  in  default  of  testimony.3  That  in  such  cases  it  was  in 
common  use  is  shown  by  a  treaty  made,  in  the  latter  part  of 
the  eleventh  century,  between  Centulla  I.  of  Beam  and  the 
Yiscount  of  Soule,  in  which  all  doubtful  questions  arising 
between  their  respective  subjects  are  directed  to  be  settled 
by  the  combat,  with  the  singular  proviso  that  the  com- 
batants shall  be  men  who  have  never  taken  part  in  war.3 
In  the  thirteenth  century,  however,  a  provision  occurs 
which  must  have  greatly  reduced  the  number  of  duels,  as  it 
imposed  a  fine  of  only  sixteen  sous  on  the  party  who  made 
default,  while  if  vanquished  he  was  visited  with  a  mulct  of 
sixty  sous  and  the  forfeiture  of  his  arms.4 

In  some  regions,  greater  restrictions  were  imposed  on  the 
^  facility  for  such  appeals  to  the  sword.  In  Catalonia,  for 
instance,  the  judge  alone  had  the  power  of  deciding  whether 
they  should  be  permitted,5  and  a  similar  right  was  reserved 
to  the  podesta  in  a  code  of  laws  enacted  at  Verona  in  1228.6 
This  must  often  have  pre  vented  the  injustice  inherent  in 
the  system,  and  an  equally  prudent  reserve  was  exhibited  in 
a  statute  of  Montpellier,  which  required  the  assent  of  both 
parties.7  On  the  other  hand,  in  Normandy,  at  the  com- 
mencement of  the  thirteenth  century,  many  cases  relating 
to  real  estate  were  examined  in  the  first  instance  by  a  jury 

1  Non  est  consuetudo  Mediolani  ut  de  felonia  aut  de  infidelitate  pugna 
fiat;  licet  contrarium  sit,  quod  prsccipit  lex  Longobardorum,  ut  de  infideli- 
tate pugna  fiat. — Feudor.  Lib.  n.  Tit.  xxxix.  • 

3  For  de  Morlaas,  Rubr.  xxxviii.  xxxix. 

3  Marca,  Hist,  de  Beam,  p.  293  (Mazure  et  Hatoulet). 

4  For  de  Morlaas,  Rubr.  iv. 

^     5  Libell.  Catalan.  MS.     (Du  Cange.) 

G  Meo  arbitrio  determinabo  duelluni,  vel  judicium  judicabo. — L.  Munic. 
Veronens.  cap.  78  (Muratori*Antiq.  Ital.  Dissert.  39). 
7  Statut.  Montispess.  ann.  1204  (Du  Cange). 


M  1  \  I  M  I    M      \     \  I.  I    |     AT     ISSUE.  99 

of  twelve  men,  and  if  they  foiled  <>f  an  unanimous  verdict, 
the  question  was  decided  l»\  t ho  duel,  whether  the  parties 
were  willing  or  not.1 

From  a  very  early  period,  a  minimum  limit  of  value  was 
established,  below  which  a  pugnacious  pleader  was  not 
allowed  to  put  the  life  or  limb  of  his  adversary  in  jeopardy. 
This  varied  of  course  with  the  race  and  the  period.  Thus, 
among  the  Angli  and  Werini,  the  lowest  sum  for  which 
the  combat  was  permitted  was  two  solidi,9  while  the  Bai- 
oarians  established  the  limit  at  the  value  of  a  cow.8  In 
the  tenth  century,  Otho  II.  decided  that  six  solidi  should 
be  the  smallest  sum  worth  fighting  for.4  The  laws  of 
Henry  I.  of  England  decreed  that  in  civil  cases  the  appeal 
of  battle  should  not  lie  for  an  amount  less  than  ten  solidi.5 
In  France,  Louis-le-Jeune,  by  an  edict  of  1168,  forbade  the 
duel  when  the  sum  in  debate  was  less  than  five  sous,8  and 
this  remained  in  force  for  at  least  a  century.7     The  custom 

1  Etablissements  de  Normandie,  passim  (Edition  Marnier). 

9  L.  Anglior.  et  Werinor.  Tit.  xv.  The  variations  in  the  coinage  are  so 
numerous  and  uncertain,  that  to  express  the  values  of  the  solidus  or  sou,  at 
the  different  periods  and  among  the  different  races  enumerated,  would  occupy 
too  much  space.  In  general  terms,  it  may  be  remarked  that  the  Carlovingian 
solidus  was  the  twentieth  part  of  a  pound  of  silver,  and,  according  to  the 
researches  of  Guerard,  was  equivalent  in  purchasing  power  to  about  thirty- 
six  francs  of  modern  money.     The  marc  was  half  a  pound  of  silver. 

3  L.  Baioar.  Tit.  vm.  cap.  ii.  §  5 ;  cap.  iii. 

*  L.  Langobard.    Lib.  n.  cap.  lv.  §  37. 

*  L.  Henrici  I.  cap.  59. 

6  Isambert,  Anciennes  Lois  Francaises,  I.  162.  This  occurs  in  an  edict 
abolishing  sundry  vicious  customs  of  the  town  of  Orleans.  It  was  probably 
merely  a  local  regulation,  though  it  has  been  frequently  cited  as  a  general 
law. 

7  Livres  de  Jostice  et  de  Plet,  Liv.  xix.  Tit.  xvii.  §  3,  and  Tit.  xxii.  §  4. 
See  also  a  coutumier  of  Anjou  of  the  same  period  (Anciens  Usages  d'Anjou, 
§  32.— Marnier,  Paris,  1853). 

The  "  Livre  de  Jostice  et  de  Plet"  was  the  production  of  an  Orleannais, 
which  may  account  for  his  affixing  the  limit  prescribed  by  the  edict  of  Louis^ 
le-Jeune.  The  matter  was  evidently  regulated  by  local  custom,  since,  as 
we  have  already  seen,  his  contemporary,  Beauraanoir  (cap.  Ixiii.  §  11), 
names  twelve  deniers,  or  one  sou,  as  the  minimum. 


100  THE    WAGER    OF    BATTLE. 

of  Normandy  in  the  thirteenth  century  specifies  ten  sous 
as  the  line  of  demarcation  between  the  "lex  apparens" 
and  the  "  lex  simplex"  in  civil  suits,1  and  the  same  provi- 
sion retains  its  place  in  the  Coutumier  in  use  until  the 
sixteenth  century.2  In  the  Frankish  kingdom  of  Jerusalem, 
the  minimum  was  a  silver  marc.0  A  law  of  Aragon,  in 
1247,  places  the  limit  at  ten  sous.4  By  the  criminal  pro- 
cedure in  England,  at  about  the  same  period,  the  duel  was 
prescribed  only  for  cases  of  felony  or  crimes  of  importance, 
and  it  was  forbidden  in  trifling  misdemeanors.5  The  con- 
temporary law  of  Germany  provides  that  in  accusations 
of  personal  violence,  the  duel  was  not  to  be  allowed,  unless 
the  injury  inflicted  on  the  complainant  had  been  sufficiently 
serious  to  cause  permanent  maiming,6  thus  showing  how 
thoroughly  different  in  spirit  was  the  judicial  combat  from 
the  modern  code  of  honor  which  has  been  affiliated  upon  it. 
No  rank  of  life  procured  exemption  from  the  duel  be- 
tween antagonists  of  equal  station.  When  in  1002,  on  the 
death  of  Otho  III.,  the  German  throne  was  filled  by  the 
election  of  Henry  the  Lame,  Duke  of  Bavaria,  one  of  his 
.  disappointed  competitors,  Hermann,  Duke  of  Swabia,  is  said 
to  have  demanded  that  their  respective  claims  should  be 
determined  by  a  judicial  combat,  and  the  new  king,  feeling 
himself  bound  to  accept  the  wager  of  battle,  proceeded  to 
the  appointed  place,  and  waited  in  vain  for  the  appearance 
of  his  antagonist.7    Thus  the  champion  of  England,  who 

1  Cost.  Leg.  Norman.  P.  n.  cap.  xxi.  §  7  (Ludewig,  Reliq.  MSS.  VII.  307.) 
The  judgment  of  God  was  frequently  styled  "  Lex  apparens"  or  "paribilis." 

2  Anc.  Coutum.  de  Normandie,  cap.  87  (Bourdot  de  Richebourg,  IV.  55). 

3  Assises  de  Jerusalem,  cap.  149. 

4  Laws  of  Huescar,  by  Don  Jayme  I.  (Du  Cange  s.  v.  Torna). 

s  Poterit  enim  factum  esse  ita  leve  quod  non  jacebit  appellum,  ut  si  levis 
transgressio  sit,  vel  si  simplex  injuria. — Bracton.  Lib.  III.  Tract,  ii.  cap. 
19  §  6,  also  cap.  23  §  2. 

6  Ob  alia  autem  vulnera  haud  ita  gravia,  duellum  non  permittitur. — Jur. 
Provin.  Alaman.  cap.  clxxii.  §  20  (Ed.  Senckenberg). 

7  Dithmari  Chron.  Lib.  v. 


NO    CLASS    111  M  1""  I  I.. 

figures  in  the  coronation  pageant  of  Westminster  Abbey , 

is  a  relic  of  the  times  when   it   was  not  an   idle  invi iv 

for  the  armed  and  mounted  knight  to  fling  the  gauntlet, 
and  proclaim  aloud  that  he  was  ready  to  do  battle  with 
any  one  who  challenged  the  right  of  the  new  monarch  to 

his  crown.1  A  striking  example  of  the  liability  attaching 
to  even  the  most  exalted  rank  is  allbrded  by  a  declaration 
of  the  privileges  of  the  Dnchy  of  Austria,  granted  by 
Frederic  Harharossa  in  1156,  and  confirmed  by  Frederic 
II.  in  1245.  These  privileges  rendered  the  dukes  virtually 
independent  sovereigns,  and  among  them  is  enumerated 
the  right  of  employing  a  champion  to  represent  the  reign- 
ing duke  when  summoned  to  the  judicial  duel.*  Even 
more  instructive  is  the  inference  deducible  from  the  For 
de  Morlaas,  granted  to  his  subjects  by  Gaston  IV.  of  Bdarn 
about  the  year  1100.  The  privileges  contained  in  it  are 
guaranteed  by  a  clause  providing  that,  should  they  be  in- 
fringed by  the  prince,  the  injured  subject  shall  substantiate 
his  complaint  by  his  simple  oath,  and  shall  not  be  com- 
pelled to  prove  the  illegality  of  the  sovereign's  acts  by  the 
Judicial  combat,3  thus  indicating  a  pre-existing  custom  of 
the  duel  between  the  prince  and  his  vassals. 

International  litigation,  even,  was  subject  to  the  same 
arbitrament.  Allusion  has  already  been  made  to  the  chal- 
lenge which  passed  between  Charles  of  Anjou  and  Pedro 
of  Aragon,  and  other  instances  might  readily  be  given, 
such  as  that  of  the  Emperor  Henry  III.  and  Henry  I.  of 
France  during  their  interview  at  Ipsch  in  1056.4  These  may 
perhaps  be  regarded  rather  as  personal  than  national  quar- 

1  From  the  time  of  Henry  I.,  the  office  of  king's  champion  was  one  of 
honor  and  dignity.   (See  Spelman's  Glossary.) 

"  Insnper  potest  idem  Dux  Austria;,  cum  impugnatus  fuerit  ah  aliquo  de 
duello,  per  unum  idoneum  non  in  enormitatis  macula  detentum  vices  suas 
prorsus  supplere. — Constit.  Frid.  II.  ann.  1245,  cap  9.  (Qoldast.  Const. 
Imp.  I.  303.) 

3  For  de  Morlaas,  Ruhr.  xxvi. 

4  Lambert.  Schaffnaburg.  ann.  1056. 

9* 


'18&  :',•''::.,  ;t  h.e  ,  w  a g e r  op  battle. 

rels,  but  that  distinction  does  not  apply  to  a  case  which 
occurred  in  1034,  when  the  Emperor  Conrad  the  Salique 
endeavored  to  pacify  the  Saxon  Marches.  On  inquiring 
into  the  origin  of  the  mutual  devastation  of  the  neighbor- 
ing races,  the  Saxons,  who  were  really  in  fault,  offered  to 
prove  by  the  duel  that  the  Pagan  Luitzes  were  the  aggres- 
sors, trusting  that  their  Christianity  would  counterbalance 
the  injustice  of  their  cause.  The  defeat  of  their  champion 
by  his  heathen  adversary  was,  however,  a  memorable  ex- 
ample of  the  impartiality  of  God,  and  was  received  as  a 
strong  confirmation  of  the  value  of  the  battle  trial.1 

As  regards  the  inferior  classes  of  society,  innumerable 
documents  attest  the  right  of  peasants  to  decide  their 
quarrels  by  the  ordeal  of  battle.  By  the  old  Lombard  law, 
slaves  were  allowed  to  defend  themselves  in  this  manner  ;3 
and  they  could  even  employ  the  duel  to  claim  their  liberty 
from  their  masters,  as  we  may  infer  from  a  law  of  King  Grim- 
oald  denying  this  privilege  to  those  who  could  be  proved 
to  have  served  the  same  master  for  thirty  continuous  years.3 
Similarly,  among  the  Frisians,  a  litus  claiming  his  liberty 
was  allowed  to  prove  it  against  his  master  with  arms.4 
The  institutions  of  feudalism  widened  the  distance  between 
the  different  classes  of  society,  and  we  have  already  seen 
that,  in  the  thirteenth  century,  serfs  were  enfranchised  in 
order  to  enable  them  to  support  their  testimony  by  the 
combat ;  yet  this  was  only  the  result  of  inequality  of  rank. 
In  the  time  of  Beaumanoir  (1283),  though  an  appeal  would 
not  lie  from  a  serf  to  a  freeman,  it  may  be  safely  inferred 
from  the  context  that  a  combat  could  be  legally  decreed 
between  two  serfs,  if  the  consent  of  their  masters  were 
obtained,5  and  other  contemporary  authorities  show  that  a 

1  Wippo.  Vit.  Chunradi  Salici. 

"  L.  Longobard.  Lib.  i.  Tit.  xxv.  §  49.     Servus  ejus  tunc  per  pugnaui  aut 
per  sacramentum  se  defendat  si  potuerit. 

3  Ibid.  Lib.  i.  Tit.  ix.  §  38.  4  L.  Fusion.  Tit.  xi.  cnp.  iii. 

6  Coutumes  du  Beauvoisis,  cap.  lxiii    §  1. 


DIFFERENCE    OF    RANK.  108 

man  claimed  as  a  serf  could  defend  Wis  freedom  with  the 
sword  against  his  would-iir  master.1  Even  Jews  irere  held 
liable  to  the  appeal  of  battle,  as  we  learn  from  a  decision 
of  1207,  preserved  in  an  ancient  register  of  assizes  in  Nor- 
mandy,-' and  they  no  doubt  purchased  the  exemption,  which 
was  granted  them,  except  in  oases  of  flagrant  murder,  by 
Philippe-le-Long,  as  a  special  favor,  in  1317.3 

Difference  of  condition  thus  became  an  impediment  to  the 
duel,  and  formed  the  subject  of  many  regulations,  varying 
with  circumstance  and  locality.  The  free  mountaineers  of 
Beam,  as  has  been  seen,  placed  the  prince  and  the  subject 
on  an  equality  before  the  law,  but  this  was  a  rare  example 
of  independence,  and  the  privileges  of  station  were  some- 
times exhibited  in  their  most  odious  form.  In  France,  for 
instance,  while  the  battle  trial  could  take  place  between  the 
gentilhomme  and  the  vilain,  the  former  was  secured  by  the 
distinction  that  if  the  villein  presumed  to  challenge  him, 
he  enjoyed  the  right  of  fighting  on  horseback  with  knightly 
weapons,  while  the  challenger  was  on  foot  and  armed  only 
with  shield  and  staff;  but  if  the  gentleman  condescended 
to  challenge  the  villein,  they  met  on  equal  terms.4  In  Ger- 
many, where  the  minute  distinctions  of  birth  were  guarded 

1  Livres  de  Jostice  et  de  Plet,  Liv.  xix.  Tit.  13. — Abnegavit  se  esse  servum 
S.  Martini,  et  de  hoc  arramivit  bellum  contra  nos. — Tabul.  Vindocinens, 
cap.  159  (Du  Cange,  s.  v.  adramire) . 

51  Assises  de  l'Echiquier  de  Norraandie,  p.  114  (Marnier). 

3  Lauriere,  Table  Chron.  des  Ordonnances,  p.  105. 

4  Beaumanoir,  op.  cit.  cap.  lxi.  §§  9,  10.— Etablissements  de  S.  Louis, 
Liv.  i.  chap.  Ixxxii. — Pierre  de  Fontaines,  however,  repudiates  this  bar- 
barous custom  in  cases  of  appeal,  and  directs  that  the  combat  shall  take 
place  on  foot  between  champions — (Conseil,  chap.  xxi.  Tit.  xiv.).  Beau- 
manoir mentions  a  case  which  shows  that  practical  justice  was  not  un- 
frequently  enforced  without  ceremony.  A  gentleman  challenged  a  roturier, 
and  presented  himself  in  the  arena  on  horseback  with  his  knightly  arms. 
The  defendant  reclaimed  against  the  injustice,  and  the  judges  decided  that 
the  gentleman  forfeited  his  horse  and  arms,  and  that  if  he  desired  to  accom- 
plish the  combat  he  must  do  so  in  the  condition  in  which  he  was  left  by  the 
disarmament — in  his  shirt,  without  weapon  or  shield,  while  his  adversary  re- 
tained his  coat  of  mail,  target,  and  club. — (Cout.  de  Beauvoi.  cap.  ixiv.  $  3.) 


104  THE    WAGER    OF    BATTLE. 

with  the  most  jealmis  care  fi'om  a  very  early  period,  the 
laws  of  the  thirteenth  century  provide  that  a  difference  of 
rank  permitted  the  superior  to  decline  the  challenge  of  an 
inferior,  while  the  latter  was  obliged  to  accept  the  appeal  of 
the  former.  So  thoroughly  was  this  principle  carried  into 
practice,  that,  to  compel  the  appearance  of  a  Semperfri, 
or  noble  of  sixteen  quarterings,  the  appellant  was  obliged 
to  prove  himself  of  equally  untarnished  descent.1  In  the 
same  spirit,  a  Jew  could  not  decline  the  appeal  of  battle  of- 
fered by  a  Christian  accuser,  though  we  may  safely  infer 
that  the  Jew  could  not  challenge  the  Christian.3  So,  in  the 
Latin  kingdom  of  Jerusalem,  the  Greek,  the  Syrian,  and  the 
Saracen  could  not  challenge  the  Frank,  but  could  not,  in 
criminal  cases,  decline  the  challenge  of  a  Christian,  though 
they  might  in  civil  suits.3  In  Aragon,  no  judicial  duel  was 
permitted  between  a  Christian  and  a  Jew  or  a  Saracen,4 
while  in  Castile  both  combatants  had  to  be  gentlemen, 
quarrels  between  parties  of  different  ranks  being  settled  by 
the  courts.5 

There  were  three  classes — women,  ecclesiastics,  and  those 
suffering  under  physical  incapacity — with  whom  personal 
appearance  in  the  lists  would  appear  to  be  impossible. 
When  interested  in  cases  involving  the  wager  of  battle, 
they  were  therefore  allowed  the  privilege  of  substituting  a 
champion,  who  took  their  place  and  did  battle  for  the  jus- 

1  Jur.  Provin.  Alamann.  cap.  ccclxxxv.  §§  14,  15  (Ed.  Schilter).  Ac- 
cording to  some  MSS.,  however,  this  privilege  of  declining  the  challenge 
of  an  inferior  was  not  allowed  in  cases  of  homicide. — "  Ibi  enim  corpus 
corpori  opponitur." — cap.  liii.  §  4.  (Ed.  Senckenberg.)  On  the  other 
hand,  a  constitution  of  Frederic  Barbarossa,  issued  in  1168  and  quoted  above, 
forbids  the  duel  in  capital  cases,  unless  the  adversaries  are  of  eqOal  birth. 

2  Ibid.  cap.  cclviii.  §  20  (Ed.  Schilter). — We  have  already  seen  that 
the  converse  of  this  rule  was  introduced  in  England,  as  regards  questions 
between  Frenchmen  and  Englishmen,  by  William  the  Conqueror. 

3  Quia  surien  et  greci  in  omnibus  suis  causis,  praeter  quam  in  criminalibus 
excusantur  a  duello — Assises  de  Jerusalem,  Baisse  Court,  cap.  269. 

4  Laws  of  Huescar,  ann.  1247.     (Du  Cange  s.  v.  Toriia.) 
1  Las  Siete  Partidas,  P.  vn.  Tit.  iii.  1.  3. 


WOMEN    AS    DUELLISTS.  H>."> 

tuv  <>r  their  cause.  So  careful  were  legislators  to  prevent 
any  failure  in  the  procedure  prescribed  by  law,  thai  the 
Assises  de  Jerusalem  ordered  the  suzerain  to  supply  the 
expenses  for  fort}r  days,  when  ■  suitor  unable  to  fight  was 
also  too  poor  to  pay  for  a  champion  to  take  his  place  ;  and 
when  a  murdered  man  left  no  relatives  to  prosecute  the 
murderer,  the  suzerain  was  likewise  obliged  to  furnish  the 
champion  in  any  trial  that  might  arise.1  Equally  directed 
to  the  same  purpose  was  the  German  law  which  provided 
that  when  a  crippled  defendant  refused  or  neglected  to 
procure  a  substitute,  the  judge  was  to  seize  one-half  of 
his  property  with  which  to  pay  the  services  of  a  gladiator, 
who  could  claim  nothing  more.8 

Women,  however,  did  not  always  restrict  themselves  to 
fighting  thus  vicariously.  The  Genu  an  laws  refer  to  cases 
in  which  a  woman  might  demand  justice  of  a  man  person- 
ally in  the  lists,  and  not  only  are  instances  on  record  in 
which  this  was  done,  but  it  was  of  sufficiently  frequent  oc- 
currence to  have  an  established  mode  of  procedure,  which 
is  preserved  to  us  in  all  its  details  by  illuminated  MSS.  of 
the  period.3  The  chances  between  such  unequal  adversa  lies 
were  equalized  by  burying  the  man  to  his  waist,  tying  his 
left  hand  behind  his  back,  and  arming  him  only  with  a 
mace,  while  his  fair  opponent  had  the  free  use  of  her  limbs 
and  was  provided  with  a  heavy  stone  securely  fastened  in 
a  piece  of  stuff.4 

1  Assises  de  Jerusalem,  cap.  266,  267. 

3  Si  hoc  facere  non  vult  paralyticus  ille,  tunc  judex  mediante  pecunia 
paralytici,  campionem  aliquem  adsciscere  debet,  huic  paralyticus  semissem 
bonorum  dare  debet,  et  nihil  amplius. — Jur.  Provin.  Alamann.  cap.  Ix.  §  5. 

3  Jur.  Provin.  Alamann.  cap.  cexxix.  §  2.  This  chapter  is  omitted  in 
the  French  version  of  the  Speculum  Suevicum. 

4  Konigswarter,  op.  cit.  p.  221. — In  many  places,  however,  crimes  which 
a  man  was  forced  to  disprove  by  combat,  were  subject  to  the  ordeal  of  hot 
iron  or  water  when  the  accused  was  a  woman.  Thus  by  the  Spanish  law  of 
the  thirteenth  century  "  Muger  .  .  salvese  por  fierro  caliente  ;  e  si  varon 
fuere  legador  .  .  salvese  por  lid." — Fuero  de  Baega.  (Villadiego,  Fuero 
Juzgo  fol.  317J.) 


106  THE    WAGER    OF    BATTLE. 

The  liability  of  ecclesiastics  to  the  duel  varied  with  the 
varying  relations  between  the  church  and  state.  As  early 
as  the  year  819,  Louis-le-Debonnaire,  in  his  additions  to  the 
Salique  law,  directs  that,  in  doubtful  cases  arising  between 
laymen  and  ecclesiastics,  the  duel  between  chosen  witnesses 
shall  be  employed,  but  that  when  both  parties  are  clerical 
it  shall  be  forbidden.1  This  restriction  was  not  long  ob- 
served. A  decree  of  the  Emperor  Guy,  in  892,  gives  to 
churchmen  the  privilege  of  settling  their  quarrels  either  by 
combat  or  by  witnesses,  as  they  might  prefer  f  and  about 
the  year  945,  Atto  of  Vercelli  complains  that  the  tribunals 
allowed  to  ecclesiastics  no  exemption  from  the  prevailing 
custom.3  Yet  so  far  was  this  from  being  deemed  a  hard- 
ship by  the  turbulent  spirits  of  the  period,  that  clerks  not 
unfrequently  disdained  to  sustain  their  rights  by  the  inter- 
vention of  a  champion,  and,  yielding  to  warlike  aspirations, 
boldly  entered  the  lists  themselves.  In  1080  the  Synod  of 
Lillebonne  adopted  a  canon  punishing  by  a  fine  such  bel- 
ligerent churchmen  as  indulged  in  the  luxury  of  duels 
without  having  first  obtained  from  their  bishops  a  special 
license  authorizing  it.4  About  the  same  period,  Geoffry, 
abbot  of  Vendome,  in  a  letter  to  the  Bishop  of  Saintes, 
complains  of  one  of  his  monks  who  had  fought  in  a  judicial 
duel  with  a  clerk  of  Saintes.5  The  practice  continued,  and 
though  forbidden  by  Pope  Innocent  II.  in  1140,6  Alexander 
III.  and  Clement  III.  found  it  necessary  to  repeat  the  pro- 
hibition before  the  close  of  the  century,7  and  soon  after- 

1  Capit.  Ludov.  Pii  I.  aim.  819,  cap.  x. 

2  Ughelli,  T.  II.  p.  122  (Du  Cange) . 

3  Addunt  insuper,  quoniam  si  aliquis  militum  sacerdotes  Dei  in  crimine 
pulsaverit  per  pugnam  sive  singulari  certamine  esse  decernendum. — De  Pres- 
suris  Eccles. 

4  Clericus  .  .  .  si  duellum  sine  episcopi  licentiasusceperit  .  .  .  autassultum 
feeerit,  episcopis  per  pecuniam  emendetur. — Orderic.  Vital.  P.  II.  Lib.  v.  c.  5. 

5  Goffrid.  Vindocinens.  Lib.  III.  Epist.  39.  G  Du  Cange. 

7  Ut  clerici  non  pugnent  in  duello,  nee  pro  se  pugiles  introducent. — Chron. 
S.  iEgid.  in  Brunswig. — Can.  1.  Extra.  Lib.  v.  Tit.  xiv. 


ECCLESIASTICAL    DUELS.  107 

wards  Celestin  III.  was  forced  to  pronounce  sentence  of 
deposition  in  a  case  of  this  nature  submitted  to  him.1  All 
this  was  formally  and  peremptorily  confirmed  by  Innocent 
ill.  at  the  great  council  of  Lateran  in  1215.9 

That  the  peaceful  ministers  of  Christ  should  vindicate 
their  rights  with  the  sword,  either  personally  or  by  prow, 
was  a  sacrilege  abhorrent  to  pious  minds.  As  early  as  the 
middle  of  the  ninth  century,  Nicholas  I.,  who  did  so  much 
to  establish  the  supremacy  of  the  church,  endeavored  to 
emancipate  it  from  this  necessity,  and  declared  that  the 
duel  was  not  recognized  by  the  ecclesiastical  law.8  The 
utmost  privilege  accorded  the  clergy,  however,  was  the 
right  of  presenting  a  champion  in  the  lists,  which  zealous 
churchmen  naturally  resented  as  an  arbitrary  injustice.4 
How  thoroughly  it  was  carried  out  in  practice,  notwith- 
standing all  remonstrances,  is  shown  by  a  charter  granted 
in  1024  by  St.  Stephen  of  Hungary  to  the  monastery  of 
St.  Adrian  of  Zala,  by  which,  among  other  privileges,  the 
pious  king  bound  himself  to  supply  a  champion  in  all  suits 
against  the  abbey,  in  order  that  the  holy  meditations  of 
the  monks  might  not  be  interrupted.5  It  was  long  before 
the  abuse  wras  removed.  In  1112  we  find  a  certain  Guil- 
laume  Maumarel,  in  a  dispute  with  the  chapter  of  Paris 
concerning  some  feudal  rights  over  the  domain  of  Sucy, 
appearing  in  the  court  of  the  Bishop  of  Paris  for  the  pur- 
pose of  settling  the  question  by  the  duel,  and  though  the 
matter  was  finally  compromised  without  combat,  there  does 

1  Can.  2  Extra.  Lib.  v.  Tit.  xiv.  2  Concil.  Lateran.  IV.  can.  18. 

3  Monomachiam  in  legem  non  aseumiraus,  quam  antecessores  nostros 
minime  accepisse  cognovimus. — Cap.  Monomachiam  cans.  n.  q.  5. — Nicolai 
PP.  I.  Epist.  148. 

4  Ad  pugnam  sacerdotes  impingere  qurerunt,  nullam  amplius  reverentiam 
ipsis  observantes,  nisi  quod  non  propriis  manibus,  sed  per  submissos-  illis  in 
tali  discrimine  judicant  dimicare. — Atton.  Vercell.  De  Pressuris  Eccles. 
Pt.  I. 

s  Chart.  S.  Stephani  (Batthyani,  Legg.  Eccles.  Hung.  T.  I.  p.  384). 


108  THE    WAGER    OF    BATTLE. 

not  seem  to  have  been  anything  irregular  in  his  proceeding/1 
So,  about  the  same  period,  in  a  case  of  disputed  property 
between  the  abbey  of  St.  Aubin  in  Anjou  and  a  neighboring 
knight,  the  monks  not  only  challenged  their  adversary, 
but  the  duel  was  held  in  the  seignorial  court  of  another 
monastery;3  and  in  1164,  we  find  a  duel  decreed  at  Monza, 
by  the  Archbishop  of  Cologne  as  chancellor  of  Italy,  be- 
tween an  abbey  and  a  layman  of  the  vicinity.3  That  such 
cases,  indeed,  were  by  no  means  uncommon  is  shown  by 
their  special  prohibition  in  1195  by  Celestin  III.4  Yet,  not- 
withstanding the  repeated  efforts  of  the  Holy  See,  it  was 
almost  impossible  for  the  church  to  exempt  itself  from  the 
universal  liability.  Though  in  1174  Louis  VII.  granted  a 
special  privilege  of  exemption  to  the  church  of  Jusiers  and 
its  men,  on  the  ground  that  he  was  bound  to  abrogate  all 
improper  customs,5  still  no  general  reform  appears  to  have 
been  practicable.  As  late  as  the  year  1245,  some  vassals 
of  the  chapter  of  Notre  Dame  at  Paris  denied  the  service 
due  by  them,  and  demanded  that  the  claim  of  the  chapter 
should  be  made  good  by  the  wager  of  battle.  That  they 
had  a  legal  right  to  do  so  is  shown  by  the  fact  that  the 
churchmen  were  obliged  to  implore  the  intervention  of  the 
Pope ;  and  Innocent  IV.  accordingly  granted  to  the  chapter 
a  special  privilege,  in  which,  on  the  ground  that  single 
combats  were  forbidden  by  the  canons,  he  declared  that 
the  church  of  Notre  Dame  should  be  entitled  to  prove  its 
rights  by  witnesses,  deeds,  and  other  legitimate  proofs, 
notwithstanding  the  custom  existing  to  the  contrary.6 

1  Cartulaire  de  l'Eglise  de  Paris,  I.  378. 

3  The  charter  relating  to  the  suit  and  its  results  is  given  hy  Baluze  and 
Mansi,  Miscell.  III.  59. 

3  Ibid.  p.  134.  *  Can.  1  Extra,  Lib.  v.  Tit.  xxxv. 

s  Tenemur  pravas  consuetudines  funditus  extirpare. —  (Du  Boys,  Droit 
Criminel  des  Peuples  Modernes,  II.  187.) 

6  Contraria  consuetudine  non  obstante. — Cart,  de  l'Eglise  de  Paris,  II. 
393-4. 


ECCLESIASTICAL    JURISDICTION.  109 

These  individual  exceptions  only  prere  the  universality 

of  the  rule.  It  is  therefore  not  surprising  to  find  that 
prelates,  acting  in  their  capacity  of  temporal  seigneur^ 
should  have  been  secaatomed  bo  award  the  duel  aa  (reels 

as  any  other  form  of  legal  procedure.  To  do  this  was  not 
only  one  of  t ho  privileges  which  marked  the  feudal  supe- 
rior, but 'was  also  a  source  of  revenue  from   the   fees  and 

penalties  thence  accruing,  and  these  rights  were  as  eagerly 

Sought  and  as  jealously  guarded  by  the  spiritual  lords  as 
by  the  warlike  barons.  It  would  scarce  be  necessary  to 
multiply  instances,  but  I  may  mention  a  charter  granted 
by  Fulk  Nera,  Count  of  Anjou,  about  the  year  1010,  be- 
stowing these  rights  oii  the  abbey  of  Beaulieu  in  Touraiiie,1 
and  one  by  the  Emperor  Henry  III.,  in  1052,  to  the  bishop 
and  church  of  Volaterra  in  Italy.2  Some  conscientious 
churchmen  objected  to  a  practice  so  antagonistic  to  all  the 
teachings  of  the  religion  of  which  they  were  professors, 
and  lifted  up  their  voices  to  check  the  abuse.  Thus,  about 
the  close  of  the  eleventh  century,  we  find  the  celebrated 
canonist,  St.  Ivo  of  Chartres,  rebuking  the  Bishop  of  Or- 
leans for  ordering  the  combat  to  decide  an  important  suit 
in  his  court.3  Ivo  even  carried  out  his  principles  to  the  sacri- 
fice of  the  jurisdiction  usually  so  dear  to  the  prelates  of 
his  day,  for  in  another  case  he  refused  to  give  judgment  be- 
cause it  necessarily  involved  a  trial  by  battle,  and  he  eluded 
the  responsibility  by  transferring  the  cause  to  the  court  of 
the  Countess  of  Chartres.4  His  precept  and  example  were 
equally  unavailing.  Churchmen  continued  to  award  the 
wager  of  battle,  and  resolutely  resisted  any  invasion  of 
their  privileges.     In  1150  the  statutes  of  the  chapter  of 

1  Du  Cange,  s.  v.  Bellum. 

2  Muratori,  Antiq.  Ital.  Dissert.  39. — Among  various  other  examples  given 
by  the  same  author  is  one  of  the  year  1010,  in  which  the  court  of  the  bishop 
of  Aretino  grants  the  combat  to  decide  a  case  between  a  monastery  and  % 
layman. 

a  Ivon.  Epist.  cxlviii.      *  *  Ibid.  Epist.  ccxlvii. 

10 


110  THE    WAGER    OF    BATTLE. 

Lausanne  direct  that  all  duels  shall  be  fought  before  the 
provost, — and  the  provost  was  Arducius,  Bishop  of  Geneva.1 
Even  in  the  thirteenth  century,  in  the  archbishop's  court 
or  officiality  of  Rheims  the  duel  was  a  matter  of  course  ;■ 
and  in  a  judgment  rendered  in  1269,  concerning  a  combat 
waged  within  the  jurisdiction  of  the  chapter  of  Notre  Dame 
of  Paris,  we  find  that  the  first  blows  of  the  fight,  usually 
known  as  "ictus  regis"  or  "les  cous  lou  roi,"are  alluded  to 
as  "  ictus  capituli."3  How  eagerly  these  rights  were  main- 
tained is  apparent  from  numerous  decisions  concerning 
contested  cases.  Thus  an  agreement  of  1193,  between  the 
Countess  of  St.  Quentin  and  the  chapter  of  Notre  Dame, 
respecting  the  disputed  jurisdiction  of  the  town  of  Viry, 
gives  the  official  of  the  chapter  the  right  to  decree  duels, 
but  places  the  lists  under  the  supervision  of  both  par- 
ties, and  divides  the  spoils  equally  between  each.4  A 
charter  of  1199,  concerning  the  village  of  Marne,  shows 
that  the  sergeant,  or  officer  of  the  chapter,  had  the  cogni- 
zance of  causes  up  to  the  gaging  of  battle,  after  which 
further  proceedings  were  reserved  for  the  court  of  the 
bishop  himself.5  In  125*7,  while  St.  Louis  was  exerting 
himself  with  so  much  energy  to  restrict  the  custom,  an 
abbey  is  found  engaged  in  a  suit  with  the  crown  to  prove 
its  right  to  decree  the  duel,  and  to  enjoy  the  fees  and 
mulcts  thence  arising.8  Even  more  significant  is  a  declara- 
tion of  the  authorities  of  Metz,  as  late  as  1299,  by  which 
the  granting  of  all  wagers  of  battle  is  expressly  admitted 
to  appertain  to  the  court  of  the  archbishop  by  the  civil 
magistrates  of  the  city;7  and  even  in  1311   a  bishop  of 

1  Migne's  Patrologia,  T.  188,  p.  1287. 

3  Lib.  Pract.  de  Consuetud.  Hemens.  passim  (Archives  Legisl.  de  Rheims). 

3  Cartulaire  de  l'Eglise  de  Paris,  III.  433.  After  the  first  blows,  the  par- 
ties could  be  separated  on  payment  of  a  fine  to  the  court,  from  the  recipient 
of  which  the  name  is  evidently  derived. 

4  Cartulaire  de  l'Eglise  de  Paris,  I.  234.  s  Ibid.,  I.  79-80. 
6  Les  Olim,  I.  24.. 

1  Faisons  cognuseant  a  tous  que  des  arramies  des  champs  et  des  batailles 


MERCANTILE     LAW.  Ill 

St.  Brieuc  ordered  a  duel  between  two  squires  pleading  In 
his  court,  in  consequence  of  high  words  between  them. 
From  some  cause,  the  combat  did  n<>t  take  place,  and  the 

Christian  prelate  Beiied  the  arms  and  horses  of  the  parties 
as  his  mulct.  They  appealed  to  the  Parlement  of  Paris, 
Which  ordered  the  restoration  of  the  confiscated  articles, 
and  fined  the  bishop  for  his  disregard  of  the  royal  edicts 
prohibiting  the  single  combat.1  By  this  time,  probably,  the 
dictum  of  Beanmanoir  had  become  generally  acknowledged, 
that  the  church  could  not  be  concerned  in  cases  which 
involved  the  wage*  of  battle,  or  of  death  or  mutilation.8 

There  was  one  jurisdiction  which  held  itself  more  care- 
fully aloof  from  the  prevailing  influence  of  barbarism — that 
of  the  Admiralty  Courts,  which  covered  a  large  portion  of 
practical  mercantile  law.  This  is  a  fact  easily  explicable, 
not  only  from  the  character  of  the  parties  and  of  the  trans- 
actions for  which  those  courts  were  erected,  but  from  the 
direct  descent  of  the  maritime  codes  from  the  Roman  law, 
less  modified  by  transmission  than  any  other  portions  of 
mediaeval  jurisprudence.  These  codes,  though  compiled 
at  a  period  when  the  wager  of  battle  flourished  in  full  lux- 
uriance, have  no  reference  to  it  whatever,  and  the  Assises 
de  Jerusalem  expressly  allude  to  the  Admiralty  Courts 
as  not  admitting  the  judicial  duel  in  proof,11  while  an  Eng- 
lish document  of  12  Edward  III.  attests  the  same  prin- 
ciple.4 When,  however,  the  case  was  one  implying  an 
accusation  of  theft  or  deception,  as  in  denying  the  receipt 

nous  avons  recogneut  et  recognissons  c'on  ne  les  doit  faire  aillors,  maiques 
en  la  court  de  l'ostel  nostre  signour  l'evesque  de  Metz. — Du  Cange,  s.  v.  Ar- 
ramiatio 

1  Les  Olim,  III.  679. 

a  Voirs  est  que  tuit  li  cas  oa  il  pot  avoir  gages  de  bataille  ou  peril  <le 
perdre  vie  ou  merabre,  doivent  estre  justicie  par  le  laie  justice ;  ne  ne  s'en 
doit  sainte  Eglise  meller. — Coutumes  du  Beauvoisis,  cap.  xi.  art.  30. 

3  En  la  cort  de  la  mer  na  point  de  bataille  por  prueve  ne  por  deraande 
de  celuy  veage. — Assises  de  Jerusalem,  cap.  xliii. 

4  Pardessus,  Us  et  Coutumes  de  la  Mer. 


112  THE    WAGER    OP    BATTLE. 

of  cargo,  the  matter  entered  into  the  province  of  criminal 
law,  and  the  battle  trial  might  be  legitimately  ordered.1 

The  forms  and  ceremonies  employed  in  the  judicial  duel 
may  furnish  an  interesting  subject  of  investigation  for 
the  admirers  of  chivalry,  but  they  teach  in  their  details 
little  concerning  the  habits  and  modes  of  thought  of  the 
Middle  Ages,  and  are  merely  interesting  to  the  pure  ar- 
chaeologist. Although  minute  directions  have  come  down 
to  us  in  the  manuals  compiled  for  the  guidance  of  judges 
of  the  lists,  to  enumerate  them  in  their  varying  fashions 
would  therefore  hardly  be  worth  the  space  which  would 
be  required  to  accomplish  the  task  with  any  fulness.  Suf- 
fice it  to  say  that  the  general  principle  on  which  the  combat 
was  conducted  was  the  absolute  assertion  by  each  party 
of  the  justice  of  his  cause,  to  which  end  a  solemn  oath  on 
the  Gospels,  or  on  a  relic  of  approved  sanctity,  was  admin- 
istered to  each  before  the  conflict  commenced.3  Defeat 
was  thus  not  merely  the  loss  of  the  suit,  but  was  also  a 
conviction  of  perjury,  to  be  punished  as  such;  and  in 
criminal  cases  it  was  also  a  conviction  of  malicious  prose- 
cution on  the  part  of  a  worsted  appellant.  Accordingly, 
we  find .  the  vanquished  party,  whether  plaintiff  or  defend- 
ant, subjected  to  penalties  more  or  less  severe,  varying  with 
the  time  and  place.  Thus,  in  819,  Louis-le-Debonnaire 
decreed  that,  in  cases  where  testimony  was  evenly  balanced, 
one  of  the  witnesses  from  each  side  should  be  chosen  to 
fight  it  out,  the  defeated  champion  suffering  the  usual  pen- 
alty of  perjury — the  loss  of  a  hand ;  while  the  remaining 

1  Livres  de  Jostice  et  de  Plet,  Liv.  vn.  Tit.  iv.  §  2. 

2  According  to  Bracton,  the  appellant  in  criminal  cases  appears  always 
obliged  to  swear  to  his  own  personal  knowledge,  visit  ac  auditu,  of  the 
crime  alleged.  This,  however,  was  not  the  case  elsewhere.  Among  the 
glossators  on  the  Lombard  law,  there  were  warm  disputes  as  to  the  propriety, 
in  certain  cases,  of  forcing  one  of  the  contestants  to  commit  perjury.  The 
matter  will  be  found  treated  at  some  length  in  Savigny's  Geschichte  d. 
Rom.  Recht,  B.  iv.  p.  159  sqq. 


PUNISHMENT    FOR    DEFEAT.  L18 

witnesses  on  the  losing  side  were  allowed  the  privilege  of 
redeeming  their  forfeited  members  at  the  regular  legal 
rate.1  William  the  Conqueror  imposed  :i  fine  of  forty  sous 
on  the  [osing  Bide  impartially ;'  this  was  increased  to  sixty 

sous  by  the  compilation  known  as  the  laws  of  Henry  I.;8 
and  the  same  regulation  is  stated  by  Glanville,  with  the 
addition  that  the  defeated  person  was  forever  disqualified 
as  a  witness  or  champion.4  By  the  Lombard  customs, 
early  in  the  eleventh  century,  the  appellant,  if  vanquished, 
had  the  privilege  of  redeeming  his  hand;  the  defendant, 
if  defeated,  lost  his  hand,  and  was  of  course  subject  in  ad- 
dition to  the  penalties  of  the  crime  of  which  he  was  proved 
guilty.5  About  the  same  time,  the  Bearnese  legislation 
embodies  a  similar  principle  in  a  milder  form,  a  fine  of 
sixty-six  sous  Morlaas  being  imposed  impartially  on  the 

1  Capit.  Ludov.  Pii  ann.  819,  cap.  x.  A  somewhat  similar  provision  oc- 
curs in  the  L.  Burgund.  Tit.  xlv.  and  Ixxx. 

3  L.  Guillelmi  Conquest,  in.  xii.  (Thorpe  I.  493)  "Si  quis  eorum  victus 
fuerit  emendet  regi  XL.  solidos. " — A  previous  law,  however,  had  assessed  a 
Norman  appellant  sixty  sous  when  defeated  (Ibid.  II.  ii.). 

3  Qui  helium  vadiaverit,  et  per  judicium  defecerit,  LX.  sol.  emendet. — 
L.  Henrici  I.  cap.  lix.  §  15. 

*  Finito  autem  duello,  poena  sexaginta  solidorum  imminebit  victo,  nomine 
recreantis.  Et  praeterea  legem  terra?  amittet. — Glanvil.  de  Leg.  Angl.  Lib. 
n.  cap.  iii. 

That  defeat  in  the  combat  was  regarded  as  much  more  damaging  than  the 
simple  loss  of  a  suit  is  shown  by  some  provisions  in  the  custom  of  Normandy, 
by  which  a  vanquished  combatant  was  classed  with  perjurers,  false  witnesses, 
and  other  infamous  persons,  as  incapable  thenceforth  of  giving  testimony  in 
court  (Cod.  Leg.  Normann.  P.  I.  cap.  Ixiv. — Ludewig  Reliq.  MSS.  T. 
VII.  p.  270),  or  of  serving  on  a  jury  (Anc.  Coutume  de  Normandie— 
Bourdot  de  Richebourg,  T.  IV.  p.  29),  "Ne  doibvent  estre  receuz  a  la  juree, 
ne  ceulx  qui  sont  reprins  de  parjure,  ou  de  porter  faulx  tesmoing,  ou  vaincu 
en  champ  de  bataille,  ou  ceulx  qui  sont  infames."  This  clause,  however, 
does  not  occur  in  the  corresponding  passage  of  the  ancient  Latin  version 
above  alluded  to.   (Ludewig,  T.  VII.  p.  282.) 

*  Poena  vero  utrisque  imminet.  Appellatori  vero,  si  victus  fuerit,  ut 
manum  perdat  aut  redimat.  Appellato  ut  bannum  solvat,  manum  perdat,  et 
homicidiuin  secundum  legem  emendat. — Formul.  Vetus  in  L.  Longobard. 
(Georgisch,  p   1276.) 

10* 


114  THE    WAGER    OF    BATTLE. 

losing  party.1  In  process  of  time,  this  system  was  aban- 
doned in  some  countries.  The  English  law  of  the  thir- 
teenth century,  admitted  the  justice  of  the  lex  talionis  in 
principle,  but  did  not  put  it  in  practice,  a  vanquished 
appellant  in  capital  cases  being  merely  imprisoned  as  a 
calumniator,  while  the  defendant,  if  defeated,  was  executed, 
and  his  property  confiscated.3  The  same  distinction  is  to 
be  found  in  the  contemporary  custom  of  Normandy.3 

The  application  of  the  lex  talionis  to  the  man  who  brought 
a  false  charge,  thus  adjudging  to  him  the  penalty  which 
was  incurred  by  the  defendant  if  convicted,  was  widely 
current  during  the  Middle  Ages.  This  principle  is  to  be 
found  enunciated  in  the  broadest  and  most  decided  manner 
in  the  ecclesiastical  law,4  and  it  was  naturally  brought  into 
play  in  regulating  the  fate  of  those  engaged  in  the  wager 
of  battle.  Thus  Guillaume-le-Breton  states  that  when 
Philip  Augustus,  in  1203,  wrested  Normandy  from  the 
feeble  grasp  of  John  Lackland,  one  of  the  few  changes 
which  he  ventured  to  introduce  in  the  local  laws  of  the 
duchy  was  to  substitute  this  rule  of  confiscation,  mutilation, 
or  death,  according  to  the  degree  of  criminality  involved 
in  the  accusation,  for  the  comparatively  light  pecuniary 
mulct  and  loss  of  legal  status  previously  incurred  by  a 
worsted  appellant.5     The  same  system  is  followed  through- 

1  For  d'Oloron,  Art.  21. 

a  Si  autem  appellans  victus  fuerit,  gaolae  committatur  tanquam  calumni- 
ator puniendus,  sed  nee  vitam  amittat  nee  membruui,  licet  secundum  leges 
ad  talionis  teneretur  (Bracton,  Lib.  m.  Tract,  ii.  cap.  18  §  6).  In  another 
passage,  Bracton  gives  a  reason  for  this  clemency — "  Si  autem  victus  sit  in 
campo  .  .  .  quamvis  ad  gaolam  mittendus  sit,  tamen  sit  ei  aliquando  gratia 
de  misericord ia,  quia  pugnat  pro  pace."     (Ibid.  cap.  21  §  7.) 

3  Etab.  de  Normandie,  Tit.  "De  prandre  fame  a  force"  (Marnier). 

4  Qui  calumniam  illatam  non  probat,  poenam  debet  incurrere  quam  si  pro- 
basset  reus  utique  sustineret. — Can.  Qui  calumniam  Caus.  v.  q.  vi.  (Decreti 
P.  II.) 

s  ...     ad  poenas  exigat  aequas, 
Victus  ut  appellans  sive  appellatus,  eadem 


PUNISHMENT    FOR    DEFEAT.  11") 

out  the  legislation  or  St.  Louis,  whether,  the  punishment 
be  Light  or  capital,  of  an  equal  responsibility  <>u  both 
parties.1  It  prevailed  throughout  the  Frankish  kingdom! 
of  the  East,  where,  in  an  appeal  of  murder,  whichever  party 

was  defected  was  hanged  in  his  spurs;9  ami  it  finally  esta- 
blished itself  in  England,  where,  in  the  fourteenth  century, 
we  find  it  positively  declared  as  an  imperative  regulation 
by  Thomas,  Duke  of  Gloucester,  in  an  elaborate  treatise  on 
the  rules  of  single  combat  printed  by  Spelman.8 

In  Germany,  however,  the  custom  was  not  uniform.  In 
one  text  of  the  Swabian  code,  the  principle  is  laid  down 
that  a  defeated  appellant  escaped  with  a  line  to  the  judge 
and  to  his  adversary,  while  the  defendant  if  vanquished  was 
visited  with  the  punishment  due  to  his  crime  ;4  while  ano- 
ther text  directs  that  whichever  party  be  defeated  should 
lose  a  hand,5  or  be  executed,  according  to  the  gravity  of 

Lege  ligaretur  mutilari  aut  perdere  vitara. 
Moris  enim  extiterit  apud  illos  hactenus,  ut  si 
Appellans  victus  in  causa  sanguinis  esset, 
Sex  solidos  decies  cum  nummo  solveret  uno 
Et  sic  impunis,  amissa  lege,  maneret: 
Quod  si  appellatum  vinci  contigeret,  omni 
Re  privaretur  et  turpi  morte  periret. 

Guillielmi  Brito.  Philippidos  Lib.  vni. 
It  will  be  observed  that  the  preexisting  Norman  custom  here  described  is 
precisely  that  indicated  above  by  Glanville. 

1  E.  g.  Etablissements  Lib.  i.  cap.  27  and  91. — "Cil  qui  seroit  vaincus 
seroitpendus"  (cap.  82).  In  capital  cases,  when  champions  were  employed, 
the  principals  were  held  in  prison  with  the  cord  around  them  with  which 
the  defeated  party  was  to  be  hanged.  If  one  was  a  woman,  for  the  cord 
was  substituted  the  spade  wherewith  she  was  to  be  buried  alive.  (Beauma- 
noir,  chap.  lxiv.  §  10.)  These  customs  were  not  calculated  to  encourage 
duelling. 
3  Assises  de  Jerusalem,  cap.  317. 

3  Recta  fides  et  sequitas  et  jus  armorum  volunt  ut  appellans  eandem  incur- 
rat  poenam  quam  defendens,  si  is  victus  fuerit  et  subactus. — Formula  Duelli, 
apud  Spelman.  Glossar.  s.  v.  Campus. 

*  Jur.  Provfh.  Alamann.  cap.  ccclxxxvi.  §§  19,  20  (Ed.  Schilter.). 
s  Quique  succumbit  ei  manus  amputetur. — Ibid.  cap.  clxviii.  $  20  (Ed. 
Senckenberg). 


116  THE    WAGER    OF    BATTLE. 

the  crime  alleged.1  An  exceptional  case,  moreover,  was 
provided  for,  in  which  both  antagonists  might  suffer  the 
penalty ;  thus,  when  a  convicted  thief  accused  a  receiver  of 
stolen  goods  of  having  suggested  the  crime,  the  latter  was 
bound  to  defend  himself  by  the  duel,  and  if  defeated,  both 
combatants  were  hanged  with  the  strictest  impartiality.3 
In  the  Veronese  code  of  1228,  a  distinction  was  established 
between  the  prosecutor  and  the  accused,  as  a  defeated 
appellant  was  punishable  at  the  pleasure  of  the  magistrate.3 
It  was  customary  to  require  the  parties  to  give  security 
for  their  due  appearance  at  the  appointed  time,  various 
fines  and  punishments  being  inflicted  on  defaulters.  By 
the  old  German  law,  the  defendant  under  such  circum- 
stances was  held  guilty  of  the  crime  charged  upon  him ; 
and  both  defendant  and  appellant  were  declared  infamous. 
According  to  some  MSS.,  indeed,  all  the  possessions  of  a 
defaulter  were  forfeited,  either  to  his  heirs,  or  to  his  feudal 
superior.4  Among  the  Bearnese,  on  the  contrary,  the 
forfeiture  for  a  default  was  only  sixteen  sous  Morlaas.5 
The  Scandinavians  punished  it  popularly  by  erecting  a 
"nithstong" — pertica  execrationis — a  post  inscribed  with 
defamatory  runes,  and  so  flagrant  was  this  insult  con- 
sidered, that  finally  it  was  prohibited  by  law  under  pain 
of  exile.8  The  bail,  of  course,  was  liable  for  all  legal 
penalties  incurred  by  a  defaulter,  and  occasionally,  indeed, 
would  seem  to  be  made  to  share  the  fate  of  the  principal, 
who  appeared  and  was  defeated.     Thus,  in  a  miracle  play 

1  Jur.  Provin.  Alamann.  cap.  clxxii.  §  18  (Ed.  Senckenberg). 
8  Ibid.  cap.  ccxix.  §  6  (Ed.  Schilter.). 

3  Et  si  actor  amiserat  pugnam,  ipsum  meo  arbitrio  puniam  — L.  Municip. 
Veron.  cap.  78. 

4  Jur.  Provin.  Alamann.  cap.  ccclxxxvi.  §  31  (Ed.  Scbilter.). — Cap.  clxxiii. 
§§  7,  8.   (Ed.  Senckenb.). 

6  For  de  Morlaas,  Rubr.  iv.  art.  5. 

6  Scblegel  Comment,  ad  Grag&s  §  31. — Grag&s  Sect,  vm  cap.  105.  A 
fanciful  etymologist  might  trace  to  this  custom  the  modern  pbrase  of  "  post- 
ing a  coward." 


c  n  0  I  C  E    01    WKAP0N8.  117 

of  the  fourteenth  century. a  stranger  knighl  at  the  court  of 
Paris,  compelled  to  fight  m  defence  of  the  honor  of  the 
king's  daughter,  is  unable  to  And  security.  The  queen  and 
princess  offer  themselves  as  hostages  and  are  accepted,  but 
the  king  warns  them — 

Dame,  par  Dieu  le  roy  celestro  ! 
Bien  vou8  recevray  pour  hostage  ; 
Mais  de  tant  vous  fas-je  bien  sage, 
Se  le  dessus  en  peut  avoir 
Ardre,  je  vous  feray  ardoir 
Et  mettre  en  cendre.' 

As  regards  the  choice  of  weapons,  much  curious  anecdote 
could  be  gathered  from  the  pages  of  Brantome  and  others 
learned  in  punctilio,  without  throwing  additional  light  upon 
mediaeval  customs.  It  may  be  briefly  observed,  however, 
that  when  champions  were  emploj^ed  on  both  sides,  the  law 
appears  generally  to  have  restricted  them  to  the  club  and 
buckler,  and  to  have  prescribed  perfect  equality  between 
the  combatants.8  An  ordonnance  of  Philip  Augustus,  in 
1215,  directs  that  the  club  shall  not  exceed  three  feet  in 
length.3  When  the  principals  appeared  personally,  it  would 
seem  that  in  early  times  the  appellant  had  the  choice  of  wea- 
pons, which  not  only  gave  him  an  enormous  advantage,  but 
enabled  him  to  indulge  any  whims  which  his  taste  or  fancy 
might  suggest,  as  in  the  case  of  a  Gascon  knight  in  the 

1  Un  Miracle  de  Notre-Dame  d'Amis  et  d'Amille  (Monmerqud  et  Michel, 
Theat.  Francais  au  Moyen-Age,  p.  238). 

Another  passage  in  the  same  play  signalizes  the  equality  of  punishment 
for  appellant  and  defendant  in  case  of  defeat : — 

— Mais  quant  il  seront 
En  champ,  jamais  n'en  ysteront 
Sanz  combatre,  soiez-en  fls, 
Tant  que  l'un  en  soit  desconfis ; 
Et  celui  qui  vaincu  sera, 
Je  vous  promet,  pendu  sera ; 
N'en  doubte  nulz. 

2  E.  g.  Constit.  Sicular.  Lib.  II.  Tit.  xxxvii.  §  1. 

3  Lauriere,  Table  des  Ordonn.  p.  10. 


118  THE    WAGER    OF    BATTLE. 

thirteenth  century,  who  stipulated  that  each  combatant 
should  be  crowned  with  a  wreath  of  roses.  As  every  detail 
of  equipment  was  thus  subject  to  the  caprice  of  the  chal- 
lenger, those  who  were  wealthy  sometimes  forced  their 
poorer  adversaries  to  lavish  immense  sums  on  horses  and 
armor.1  Where,  however,  the  spirit  of  legislation  became 
hostile  to  the  wager  of  battle,  this  advantage  was  taken  from 
the  appellant.  Frederic  II.  appears  to  have  been  the  first 
to  promulgate  this  rational  idea,  and,  in  decreeing  that  in 
future  the  choice  of  arms  shall  rest  with  the  defendant,  he 
stigmatizes  the  previous  custom  as  utterly  iniquitous  and 
unreasonable.2  In  this,  as  in  so  many  other  matters,  he 
was  in  advance  of  his  age,  and  the  general  rule  was  that 
neither  antagonist  should  have  any  advantage  over  the 
other — except  the  fearful  inequality,  to  which  allusion  has 
already  been  made,  when  a  roturier  dared  to  challenge  a 
gentleman.3  According  to  Upton,  in  the  fifteenth  century, 
the  judges  were  bound  to  see  that  the  arms  were  equal,  but 
he  admits  that  on  many  points  there  was  no  settled  or  defi- 
nite rule.4  In  Russia,  each  combatant  followed  his-  own 
pleasure ;  and  a  traveller  in  the  sixteenth  century  relates 
that  the  Muscovites  were  in  the  habit  of  embarrassing  them- 
selves with  defensive  armor  to  an  extent  which  rendered 
them  almost  helpless,  so  that  in  combats  with  Poles, 
Lithuanians,  and  Germans  they  were  habitually  worsted, 
until  judicial  duels  between  natives  and  foreigners  were  at 
length  prohibited  on  this  account.5 

Allusions  have  occurred  above  to  a  peculiarity  of  these 
combats — the  employment  of  champions — which  received 
an  application  sufficiently  extended  to  deserve  some  special 

1  Revue  Historique  de  Droit,  1861,  p.  514. 

3  Constit.  Sicular.  Lib.  II.  Tit.  xxxvii.  §  4. — Consuetudinem  pravara  et  a 
tramite  rationis  cujuslibet  alienam. 

3  This,  however,  was  not  permitted  by  Frederic,   (ubi  sup.) 

4  De  Militari  Officio  Lib.  n.  cap.  viii.  b  Du  Boys,  op.  cit.  I.  611. 


EMPLOYMENT    OF    CHAMPIONS  119 

notice.  It  has  been  seen  that  those  unable  to  wield  the 
sword  or  clui>  were   not   therefore  exempted   from   the 

duel,  and  even  the  scantiest  measure  <>f  justice  would 
require  that  they  should  have  the  right  to  delegate  their 
vindication  to  some  more  potential  vehicle  of  the  Divine 
decision.  This  would  seem  originally  to  have  been  the 
Office  of  some  member  of  the  family,  as  in  the  cognate 
procedure  of  sacramental  purgation.  Among  the  Alainanni, 
for  instance,  a  woman  when  accused  could  be  defended  1 » v 
a  kinsman  "cum  tract  a  spata;"1  the  same  rule  is  prescribed 
by  the  Lombard  law,3  and  by  that  of  the  Angli  and  Werini  ;3 
while  the  far  pervading  principle  of  family  unity  renders 
the  presumption  fair  that  it  prevailed  throughout  the  other 
races  in  whose  codes  it  is  not  specifically  indicated.  Re- 
stricted to  cases  of  disability,  the  use  of  champions  was  ■ 
necessity  to  the  battle  ordeal,  but  at  a  very  early  period 
the  practice  received  a  remarkable  extension,  which  was 
directly  in  conflict  with  the  original  principles  of  the  judi- 
cial duel,  in  permitting  able-bodied  antagonists  to  put  for- 
ward substitutes  who  fought  the  battle  for  their  principals. 
With  regard  to  this  there  appears  to  have  been  a  consider- 
able diversity  of  practice  among  the  races  of  primitive 
barbarians.  The  laws  of  the  Franks,  of  the  Alamanni,  and 
of  the  Saxons  make  no  allusion  to  such  a  privilege,  and 
apparently  expect  the  principal  to  defend  his  rights  himself, 
and  }*et  an  instance  occurs  in  590,  where,  in  a  duel  fought 
by  order  of  Gontran,  the  defendant  was  allowed  to  intrust 
his  cause  to  his  nephew,  though  as  he  was  accused  of  killing 
a  stag  in  the  king's  forest,  physical  infirmity  could  hardly 
have  been  pleaded.4     From  some  expressions  made  use  of 

1  L.  Alamann.  Add.  cap.  xxi. 

2  L.  Longobard.  Lib.  i.  Tit.  iii.  §  6,  and  Lib.  n.  Tit.  Iv.  §  12. 

3  L.  Anglior.  et  Werinor.  Tit.  xiv. 

*  Greg.  Turon.  Hist.  Lib.  x.  cap.  x.  In  this  case,  both  combatants  per- 
ished, when  the  accused  was  promptly  put  to  death,  showing  that  such  a 
result  was  regarded  as  proving  the  truth  of  the  offence  alleged. 


120  THE    WAGER    OP    BATTLE. 

by  St.  Agobard,  in  his  onslaught  on  the  ordeal  of  battle, 
we  may  fairly  presume  that  under  Louis-le-Debonnaire 
the  employment  of  champions,  in  the  Burgundian  law, 
was,  if  not  forbidden,  at  least  unusual  as  respects  the  de- 
fendant, even  in  cases  where  age  or  debility  unfitted  him 
for  the  combat,  while  it  was  allowed  to  the  appellant.1 
On  the  other  hand,  the  Baioarian  law,  which  favored  the 
duel  more  than  any  of  the  other  cognate  codes,  alludes  to 
the  employment  of  champions  in  every  reference  to  it,  and 
with  the  Lombards  the  judicial  combat  and  the  champion 
seem  to  have  been  likewise  convertible  terms.3  There  is  in 
this  something  so  repugnant  to  the  fierce  and  self-relying 
spirit  in  which  the  wager  of  battle  found  its  origin,  and  the 
use  of  a  professional  gladiator  is  so  inconsistent  with  the 
pious  reference  to  the  judgment  of  God,  which  formed  the 
only  excuse  for  the  whole  system,  that  some  external  reason 
is  required  to  account  for  its  introduction.  This  reason  is 
probably  to  be  found  in  the  liberty  allowed  of  challenging 
witnesses,  to  which  allusion  has  already  been  made.  The  pre- 
valence of  this  throughout  Western  Europe  readily  enabled 
parties,  unwilling  themselves  to  encounter  the  risks  of  a 
mortal  struggle,  to  put  forward  some  truculent  bravo  who 
swore  point-blank,  and  whose  evidence  would  require  him  to 
be  forced  out  of  court  at  the  sword's  point.  That  this,  indeed, 
was  frequently  done  is  proved  at  a  subsequent  period  by  a 
remark  of  Bracton,  who  states  that  a  witness  suspected  of 
being  a  hired  gladiator  was  not  allowed  to  proceed  to  the 
combat,  but  was  tried  for  the  attempt  by  a  jury,  and  if  con- 
victed was  punished  by  the  loss  of  a  foot  and  hand.3 

1  Horum  enim  causa  accidit  ut  non  solum  valentes  viribus,  sed  etiara  in- 
firmi  et  senes  lacessantur  ad  certamen  et  pugnam  etiain  pro  vilissimis  rebus. 
(Lib.  adv.  Legem  Gundobadi  cap.  vii.)  Mitte  unuin  de  tuis,  qui  congre- 
diatur  mecum  singulari  certamine,  ut  probat  me  reum  tibi  esse,  si  occiderit. 
(Lib.  contra  Judicium  Dei  cap.  i.) 

2  Liceat  ei  per  campionem,  id  est  per  pugnam,  crimen  ipsum  de  super  se 
si  potuerit  ejicere. — L.  Longobard.  Lib.  I.  Tit.  i.  §  8. 

3  Iutrat  quandoque  in  defensionem  et  warrantum  aliquis   malitiose  et  per 


WITNESSES    AS    CHAMPIONS.  121 

Although  the  custom  of  hiring  champions  existed  from 
■  very  early  period,  since  the  Frisian  laws  give  the  fullesl 
license  for  employing  and  paying  them,1  still  their  Identity 
with  witnesses  cannot  be  readily  proved  from  the  simple 
records  of  those  primitive  times.  It  becomes  very  evident, 
however,  in  the  more  detailed  regulations  of  the  twelfth 
end  thirteenth  centuries.  In  England,  for  instance,  until 
the  first  statute  of  Westminster,  issued  by  Edward  I.,  in 
1275,  the  hired  champion  of  the  defendant  in  a  suit  con- 
cerning real  estate  was  obliged  to  assume  the  position  of 
a  witness,  by  swearing  that  he  had  been  personally  present 
and  had  seen  seizin  given  of  the  land,  or  that  his  father 
when  dying  had  enjoined  him  by  his  filial  duty  to  maintain 
the  defendant's  title  as  though  he  had  been  present.9  This 
curious  legal  fiction  was  common  also  to  the  Norman  juris- 
prudence of  the  period,  where  in  such  cases  the  champion 
of  the  plaintiff  was  obliged  to  swrear  that  he  had  heard  and 
seen  the  matters  alleged  in  support  of  the  claim,  while  the 
opposing  champion  swore  that  they  were  false.3  In  a  simi- 
lar spirit,  an  earlier  code  of  Normandy  prescribes  that 
champions  shall  be  taken  to  see  the  lands  and  buildings  in 
dispute,  before  receiving  the  oath  of  battle,  in  the  same 
manner  as  a  jury  of  view.4  A  more  distant  indication  of 
the  same  origin  is  observable  in  the  Neapolitan  regulation 
which  directed  that  the  champion  should  swear  on  the  field 
of  battle  as  to  his  belief  in  the  justice  of  the  quarrel  which 
he  was  about  to  defend.5 

fraudem  et  pro  mercede,  sicut  campio  et  conductitius,  quod  quidem  si  fuerit 
coram  justitiariis  detectum,  non  procedatur  ad  duellum,  sed  per  patriam  in- 
quiratur  Veritas  si  mercedem  acceperit  vel  non ;  et  si  constiterit  quod  sic, 
pedem  amittat  et  pugnura. — Lib.  in.  Tract,  ii.  cap.  32  §  7. 

1  Licet  unicuique  pro  se  canipionem  inercede  conducere,  si  eum  invenire 
potuerit. — L.  Frision.  Tit.  xiv.  cap.  iv. 

'  Glanvil.  de  Leg.  Angl.  Lib.  II.  cap.  iii. 

3  Cod.  Leg.  Norman.  P.  n.  cap.  Ixiv.   (Ludewig  Reliq.  MSS.  VII.  416.) 

4  Etab.  de  Normandie,  p.  21  (Marnier). 

s  Constit.  Sicular.  Lib.  n.  Tit.  xxxvii.  §  2. 
11 


122  THE    WAGER    OF    BATTLE. 

Looking  on  the  profession  of  a  champion  in  this  light, 
as  that  of  a  false  witness,  we  can  understand  the  heavy 
penalties  to  which  he  was  subjected  in  case  of  defeat,  a 
severity  which  would  otherwise  appear  to  be  a  purposeless 
expression  of  the  savage  barbarity  of  the  times.  Thus  in 
the  Norman  coutumier  above  referred  to,  in  civil  suits  as 
to  disputed  landed  possessions,  the  champion  swearing  to 
the  truth  of  his  principal's  claim  was,  if  defeated,  visited 
with  a  heavy  fine  and  was  declared  infamous,  being  thence- 
forth incapable  of  appearing  in  court  either  as  plaintiff  or 
as  witness,  while  the  penalty  of  the  principal  was  merely 
the  loss  of  the  property  in  dispute.1  In  criminal  cases, 
from  a  very  early  period,  while  the  principal  perhaps 
escaped  with  fine  or  imprisonment,  the  hired  ruffian  was 
hanged,  or  at  best  lost  a  hand  or  foot,  the  immemorial 
punishment  for  perjury.2  In  later  times,  when  the  origin 
of  the  champion's  office  had  been  lost  sight  of,  and  he  was 
everywhere  recognized  as  simply  a  bravo  who  sold  his  skill 
and  courage  to  the  highest  bidder,  a  more  practical  reason 
was  found  for  maintaining  this  severity — the  more  neces- 
sary, because  the  principal  was  bound  by  law  to  pay  his 
champion,  even  when  defeated,  the  full  sum  agreed  upon 
as  the  price  of  his  services  in  both  swearing  and  fighting.3 
Beaumanoir  thus  defends  it  on  the  ground  of  the  liability 
of  champions  to  be  bought  over  by  the  adverse  party,  and 
he  therefore  commends  the  gentle  stimulus  of  prospective 
mutilation  as  necessary  to  prevent  them  from  betraying 

1  Cod.  Leg.  Norman.  P.  II.  cap.  Ixiv.  §  18  (Ludewig,  VII.  417). 

2  Et  campioni  qui  victus  fuerit,  propter  perjuriam  quod  ante  pugnam  com- 
misit,  dextra  manus  amputetur. — (Capit.  Ludov.  Pii  ann.  819  §  x.) — Victus 
vero  in  duello  centum  solidos  et  obolum  reddere  tenebitur.  Pugil  vero  con- 
ductitius,  si  victus  fuerit,  pugno  vel  pede  privabitur. — (Charta  ann.  1203 
—  Du  Cange). — Also  Beaumanoir,  Cout.  du  Beauv.,  cap.  lxvii.  §  10  (Du  Cange 
seems  to  me  to  have  misinterpreted  this  passage). —  See  also  Monteil's  ad- 
mirable "  Histoire  des  Francais  des  Divers  Etats,"  XVe  Siecle,  Hist.  xiii. 

3  Cod.  Leg.  Norman.  P.  n.  cap.  lxiv.  §  19  (Ludewig,  VII.  417). 


PROFESSIONAL    CHAMPIONS.  123 

their  employers.1  In  the  same  spirit,  the  Emperor  Frederic 
II.  prohibited  champions  from  bargaining  with  cadi  other 
not  to  use  teeth  and  hands.  He  commanded  them  to  inflict 
all  the  injury  possible  on  their  adversaries,  and  decreed 
that  they  should,  in  case  of  defeat,  share  the  punishment 
incurred  by  the  principal,  if  the  judge  of  the  combat  should 
consider  that  through  cowardice  or  treachery  they  had  not 
conducted  the  duel  with  proper  energy  and  perseverance.* 

With  such  risks  to  be  encountered,  it  is  no  wonder  that 
the  trade  of  the  chanipion  offered  few  attractions  to  honest 
men,  who  could  keep  body  and  soul  together  in  any  other 
way.  In  primitive  times,  the  solidarity  of  the  family  no 
doubt  caused  the  champion  in  most  cases  to  be  drawn  from 
among  the  kindred ;  at  a  later  period  he  might  generally 
be  procured  from  among  the  freedmen  or  clients  of  the 
principal,  and  an  expression  in  the  Lombard  law  justifies 
the  assumption  that  this  was  habitual,  among  that  race  at 
least.3  In  the  palmy  days  of  chivalry,  it  was  perhaps  not 
uncommon  for  the  generous  knight  to  throw  himself  boldly 
into  the  lists  in  defence  of  persecuted  and  friendless  inno- 
cence, as  he  was  bound  to  do  by  the  tenor  of  his  oath  of 
knighthood.4  A  vast  class  of  pleaders  however  would  neces- 
sarily be  destitute  of  these  resources  to  avoid  the  personal 
appearance  in  the  arena  for  which  they  might  be  unfitted 
or  disinclined,  and  thus  there  gradually  arose  the  regular 

1  Et  li  campions  vaincus  a  le  poing  cope  ;  car  se  n'estait  por  le  mehaing 
qu'il  emporte,  aucuns,  par  barat,  se  porroit  faindre  par  loier  et  se  clameroit 
vaincus,  par  quoi  ses  mestres  emporteroit  le  damace  et  le  vilonie,  et  cil  em- 
porteroit  l'argent ;  et  por  ce  est  bons  li  jugemens  du  mehaing. — (Cout.  du 
Beauv.  cap.  lxi.  §  14.) — A  charter  of  1372  shows  that  the  mutilation  of  de- 
feated champions  was  practised  even  at  that  late  date. — (Isambert,  V.  387.) 

9  Constit.  Sicular.  Lib.  n.  Tit.  xxxvii.  §  3. 

3  Et  post  illam  inquisitionera,  tradat  manum  ipse  camphio  in  manu  pa- 
rentis aut  conliberti  sui  ante  judicem. — L.  Longobard.  Lib.  IX.  Tit.  lv.  §  11. 

4  Thus  the  oath  administered  by  the  papal  legate  to  William  of  Holland, 
on  his  receiving  knighthood  previous  to  his  coronation  as  King  of  the  Ro- 
mans in  1247,  contains  the  clause  "pro  liberatione  cujuslibet  innocentis 
duellum  inire."— Ooblast.  Constit.  Imp.  T.  III.  p.  400. 


124  THE    WAGER    OP    BATTLE. 

profession  of  the  paid  gladiator.  Reckless  desperadoes, 
skilled  at  quarter-staff',  or  those  whose  familiarity  with 
sword  and  dagger,  gained  by  a  life  spent  in  ceaseless  brawls, 
gave  them  confidence  in  their  own  ability,  might  undertake 
it  as  an  occupation  which  exposed  them  to  little  risk  be- 
yond what  they  habitually  incurred,  and  of  such  was  the 
profession  generally  composed.  This  evil  must  have  made 
itself  apparent  early,  for  we  find  Charlemagne  endeavoring 
to  oppose  it  by  decreeing  that  no  robber  should  be  allowed 
to  appear  in  the  lists  as  a  champion  ;l  and  the  order  needed 
to  be  frequently  repeated. 

It  is  therefore  easy  to  understand,  when  the  Roman  law 
commenced  to  exercise  its  powerful  influence  in  moulding 
the  feudal  customs  into  a  regular  body  of  procedure,  and 
admiring  jurists  lost  no  opportunity  of  making  use  of  the 
newly  discovered  treasures  of  legal  lore,  whether  applicable 
or  not,  that  the  contempt  and  the  civil  disabilities  lavished 
by  the  Imperial  jurisprudence  on  the  gladiator  of  antiquity 
should  be  transferred  to  the  mediaeval  champion  :  although 
the  latter  by  the  theory  of  the  law  stood  forth  to  defend 
the  innocent,  while  the  former  ignobly  exposed  his  life  for 
the  gratification  of  an  imbruted  populace.3  By  the  thir- 
teenth century,  therefore,  the  occupation  of  champion  had 
become  infamous.  Its  professors  were  classed  with  the 
vilest  criminals,  and  with  the  unhappy  females  who  exposed 
their  charms  for  sale,  as  the  champion  did  his  skill  and 

1  Ut  nemo  furem  camphium  de  mancipiis  aut  de  qualibet  causa  recipere 
prsesumat,  sicut  saepius  dominus  imperator  commendavit. — Capit.  Carol. 
Mag.  ex  L.  Longobard.  cap.  xxxv.     (Baluze.) 

3  This  curious  legacy  of  shame  is  clearly  traceable  in  Pierre  de  Fontaines. 
To  be  a  gladiator  or  an  actor  was,  by  the  Roman  law,  a  competent  cause  for 
disinheritance  (Novel,  cxv.  cap.  iii.  §  10),  more  fully  set  forth  in  Cod. 
Lib.  in.  Tit.  xxvii.  1.  11,  de  arenariis.  This  latter  is  translated  bodily  by 
de  Fontaines  (Conseil,  chap,  xxxiii.  Tit.  32),  the  "arenarius"  of  the  Roman 
becoming  the  "champions"  of  the  Frenchman.  So,  chap.  xv.  Tit.  87  of  the 
Conseil  is  a  translation  of  Dig.  Lib.  iv.  Tit.  ii.  1.  23  §  2,  in  which  the  "  ath- 
leta"  of  the  original  is  transformed  into  a  "chanpion." 


DEGRADATION    OF    (MI  AM  PI  ON  8.  125 

courage.1  They  were  held  incapable  of  appearing  aa  wit- 
nesses, and  the  extraordinary  anomaly  was  exhibited  of 
seeking  t<>  Learn  the  truth  in  affairs  of  the  highest  moment, 
by  u  solemn  appeal  t<>  God,  through  the  instrumentality  of 
those  who  were  already  considered  as  convicts  of  the  worst 
kind,  or  who,  by  the  very  act,  were  branded  with  infamy  if 
Successful  in  justifying  innocence,  and  if  defeated  were 
mutilated  or  hanged.8  By  the  codes  in  force  throughout 
Germany  in  the  thirteenth  and  fourteenth  centuries,  they 
were  not  only  deprived  of  all  legal  privileges,  such  as  suc- 
ceeding to  property,  bearing  witness,  &c,  but  even  their 
children  were  visited  with  the  same  disabilities.3  The 
utter  contempt  in  which  they  were  held  was  moreover 
quaintly  symbolized  in  the  same  code  by  the  provisions  of 
a  tariff  of  damages  to  be  assessed  for  blows  and  other  per- 
sonal injuries.  A  graduated  list  of  fines  is  given  for  such 
insults  offered  to  nobles,  merchants,  peasants,  <fec,  in  com- 
pensation of  their  wounded  honor ;  below  the  serf  come 
the  mountebank  and  juggler,  who  could  only  cuff  the  assail- 
ant's shadow  projected  on  a  wall ;  and  last  of  all  are  rated 
the  champion  and  his  children,  whose  only  redress  was  a 
glance  of  sunshine  cast  upon  them  by  the  offender  from 
a  polished  shield.  Deemed  by  law  incapable  of  receiving 
an  insult,  the  satisfaction  awarded  was  as  illusory  as  the 

1  Percutiat  si  quis  hominem  infamem,  hoc  est  lusorem  vel  pugilem,  aut 
mulierem  publicam,  Ac. — Wichbild  Magdeburg.  Art.  129  (Du  Cange).  "  PIu- 
sieurs  larrons,  ravisseurs  de  femmes,  violleurs  d'eglises,  batteurs  a  loyer," 
etc. — Ordonn.  de  Charles  VII.  ann.  1447,  also  Anciennes  Coutumes  de  Bre- 
tagne.     (Monteil,  ubi  sup.) 

'  Johen  de  Beaumont  dit  que  chanpions  loiez,  prove  de  tel  chose,  ne  puet 
home  apelier  a  gage  de  bataille  an  nul  quas,  si  n'est  por  chanpion  loiez  por  sa 
deffanse  ;  car  la  poine  de  sa  mauvaise  vie  le  doit  bien  en  ce  punir. — Livres 
de  Jostice  et  de  Plet.  Liv.  xix.  Tit.  ii.  §  4. 

3  Campiones  et  eorum  liberi  (ita  nati)  et  omnes  qui  illegitime  nati  sunt, 
et  omnes  qui  furti  aut  pleni  latrocinii  nomine  satisfecere,  aut  fustigationem 
sustinuere,  hi  omnes  juris  beneficiis  carent.— Jur.  Provin.  Alamann.  cap. 
xxx vi.  $  2.     (Ed.  Schilter.) 

11* 


126  THE    WAGER    OF    BATTLE. 

honor  to  be  repaired.1  That  this  poetical  justice  was  long 
in  vogue  is  proved  by  the  commentary  upon  it  in  the  Rich- 
stich  Landrecht,  of  which  the  date  is  shown  to  be  not 
earlier  than  the  close  of  the  fourteenth  century  by  an  allu- 
sion in  the  same  chapter  to  accidental  deaths  arising  from 
the  use  of  firearms.2 

The  Italians,  however,  took  a  more  sensible  and  practical 
view  of  the  matter.  Accepting  as  a  necessity  the  existence 
of  champions  as  a  class,  they  were  disposed  rather  to  ele- 
vate than  degrade  the  profession.  In  the  Veronese  code 
of  1228,  they  appear  as  an  established  institution,  consist- 
ing of  individuals  selected  and  appointed  by  the  magis- 
trates, who  did  not  allow  them  to  receive  more  than  one 
hundred  sous  for  the  performance  of  their  office.3 

It  is  evident  that  the  evils  attendant  upon  the  employ- 
ment of  champions  were  generally  recognized,  and  it  is  not 
singular  that  efforts  were  occasionally  made  to  abrogate  or 
limit  the  practice.  Otho  II.,  whose  laws  did  so  much  to 
give  respectability  to  the  duel,  decreed  that  champions 
should  be  permitted  only  to  counts,  ecclesiastics,  women, 
boys,  old  men,  and  cripples.4  That  this  rule  was  strictly 
enforced  in  some  places  we  may  infer  from  the  pleadings 
of  a  case  occurring  in  1010  before  the  Bishop  of  Aretino, 
concerning  a  disputed  property,  wherein  a  crippled  right 
hand  is  alleged  as  the  reason  for  allowing  a  champion  to 

1  Carapionibus  et  eorum  liberis  emendae  loco  datur  fulgur  ex  clypeo  nitido, 
qui  soli  obvertitur,  ortum  ;  hoc  is  qui  eis  satisfactionem  debet  loco  emendae 
praestare  tenetur. — (Ibid.  cap.  cccv.  §  15. — Jur.  Provin.  Saxon.  Lib.  in.  art. 
xlv.)  In  the  French  version  of  the  Speculum  Suevicum,  these  emblematic 
measures  of  damage  are  followed  by  the  remark  "  cestes  emandes  furent 
estrablies  an  la  vieillie  loy  per  les  roys,"  (P.  II.  c.  lxxxvi.)  which  would 
appear  to  show  that  they  were  disused  in  the  territories  for  which  the  trans- 
lation was  made. 

2  Richstich  Landrecht,  Lib.  II.  cap.  xxv.  This  gives  additional  point  to 
the  insult  by  prescribing  the  use  of  a  duelling  shield  for  the  reflection  of  the 
sunbeam. 

3  L.  Municip.  Veron.  cap.  125,  126. 

4  L.  Longobard.  Lib.  n.  Tit.  Iv.  §§  38,  40. 


RESTRICTIONS    ON     USE    OP    CHAMPIONS.       127 

one  of  the  parties.1  In  other  parts  &f  Hah.  however,  the 
regulation  must  have  bees  speedily  disregarded.  Tor  about 

the  same  time    Henry  II.  found  it  necessary  to  promulgate 

I  law  forbidding  the  employment  of  substitutes  to  able- 
bodied  defendants  in  cases  of  parrieide  or  of  aggravated 
murder  ;9  and  when,  two  hundred  years  later,  Frederic  II. 
almost  abolished  the  judicial  combat  in  his  Neapolitan 
dominions,  we  may  fairly  presume  from  one  of  his  remarks 
that  champions  were  almost  universally  employed.3  In- 
deed, he  made  provision  for  supplying  them  at  the  public 
expense  to  widows,  orphans,  and  paupers  who  might  be 
unable  to  secure  for  themselves  such  assistance.4  In  Ger- 
many, early  in  the  eleventh  century,  it  would  seem  that 
champions  were  a  matter  of  course,  from  the  expressions 
made  use  of  in  describing  the  execution  of  a  number  of 
robbers  convicted  in  this  manner  at  Merseburg  in  101*7.* 
At  a  later  period,  it  seems  probable,  from  a  comparison  of 
two  chapters  of  the  Swabian  laws,  that  efforts  were  made 
to  prevent  the  hiring  of  professional  gladiators,6  but  that 
they  were  attended  with  little  success  may  be  inferred  from 
the  disabilities  which,  as  we  have  already  seen,  were  so 
copiously  showered  on  the  class  by  the  same  laws. 

The  Enolish  law  manifests  considerable  variation  at  dif- 
ferent  periods  with  respect  to  this  point.  In  1150,  Henry 
II.  strictly  prohibited  the  wager  of  battle  with  hired  cham- 
pions in  his  Norman  territories,7  and  we  learn  from  Glanville 

1  Muratori,  Antiq.  Ital.  Dissert.  39. 

3  L.  Longobard.  Lib.  i.  Tit.  ix.  §  37;  Tit.  x.  §  4. 

3  Vix  enim  aut  nunquam  duo  pugiles  inveniri  poterunt  sic  aequales,  etc. — 
Constit.  Sicular.  Lib.  II.  Tit.  xxxiii. 

4  Ibid.  Lib.  i.  Tit.  xxxiii. 

*  Ibi  tunc  multi  latrones  a  gladiatoribus  singulari  certamine  devicti,  sus- 
pendio  perierunt. — Dithmari.  Chron.  Lib.  vn. 

6  Jur.  Provin.  Alamann.  cap.  xxxvi.  §  2;  cap.  Ix.  §  1. 

1  Nullus  eorum  duellum  faciat  contra  aliquem  qui  testificatus  sit  pugil 
conductitius  per  sacramentum  decern  legaliura  civium. — Concil.  Eccles.  Roto- 
mag.  p.  128  (Du  Cange). 


128  THE    WAGER    OF    BATTLE. 

that  a  champion  suspected  of  serving  for  money  might  be 
objected  to  by  the  opposite  party,  whence  arose  a  secondary 
combat  to  determine  his  fitness  for  the  primary  one.1  It  is 
evident  from  this  that  mercenary  champions  were  not  re- 
cognized as  legal  in  England,  a  principle  likewise  deducible 
from  an  expression  of  Bracton's  in  the  succeeding  century.3 
Yet  eventually,  in  civil  cases,  both  parties  were  compelled  by 
law  to  employ  champions,  which  presupposes,  as  a  matter 
of  course,  that,  in  a  great  majority  of  instances,  the  substi- 
tutes must  have  been  hired.3  In  criminal  cases,  however, 
the  rule  was  reversed,  and  when  the  appellant,  from  sex  or 
other  disability,  or  the  defendant  from  age,  was  unable  to 
undergo  the  combat  personally,  it  was  forbidden,  and  the 
case  was  decided  by  a  jury.*  By  the  Scottish  law  of  the 
twelfth  century,  it  is  evident  that  champions  were  not 
allowed  in  any  case,  since  those  disabled  by  age  or  wounds 
were  forced  to  undergo  the  ordeal  in  order  to  escape  the 
duel.5  This  strictness  became  relaxed  in  time,  though  the 
practice  seems  never  to  have  received  much  encouragement. 
By  a  law  of  David  II.,  about  the  year  1350,  it  appears  that 
a  noble  had  the  privilege  of  putting  forward  a  substitute ; 
but  if  a  peasant  challenged  a  noble,  he  was  obliged  to  appear 
personally,  unless  his  lord  undertook  the  quarrel  for  him 
and  presented  the  champion  as  from  himself.8 

1  De  Leg.  Angliae  Lib.  II,  cap.  iii. 

2  Ita  posset  quilibet  in  tali  facto  alium  appellare  per  campionem  conduc- 
tivum,  quod  non  est  sustinendum. — Bracton.  Lib.  III.  Tract,  ii.  cap.  18  §  4. 

3  Lord  Eldon,  in  his  speech  advocating  the  abolition  of  trial  by  battle  in 
1819,  stated,  "In  these  the  parties  were  not  suffered  to  fight  in  propria 
persona — they  were  compelled  to  confide  their  interests  to  champions,  on  the 
principle  that  if  one  of  the  parties  were  slain,  the  suit  would  abate." — 
Campbell's  Lives  of  the  Chancellors,  VII.  279. 

4  Bracton,  Lib.  in.  Tract,  ii.  cap.  21,  §§  11,  12.— Ibid.  cap.  24. 

5  Regiam  Majestatem  Lib.  iv.  cap.  iii. 

6  Statut.  David  II.  cap.  xxviii.  By  the  burgher  laws  of  Scotland,  a  man 
who  was  incapacitated  by  reason  of  age  from  appearing  in  the  field,  was 
allowed  to  defend  himself  with  twelve  conjurators. — L.  Burgor.  cap.  xxiv. 
H  1,  2. 


RESTRICTIONS    ON     USE    OP    CHAMPIONS.       129 

The  tendency  exhibited  by  the  BnglM  law  in  distin- 
guishing between  civil  and  criminal  cases  is  manifested 
elsewhere.  Tims  in  France  and  the  Prankish  kingdoms 
of  the  East,  there  were  limitations  placed  on  the  employ- 
ment of  champions  in  prosecutions  for  crime,1  while  in 
civil  actions  there  appear  to  have  been,  at  least  in  France, 
no  restrictions  whatever.9  The  hiring  of  champions,  more- 
over, was  legally  recognized  as  a  necessity  attendant  upon 
the  privilege.3  High  rank,  or  a  marked  difference  between 
the  station  of  parties  to  an  action,  was  also  admitted  as 
justifying  the  superior  in  putting  forward  a  champion  in 
his  place.4  Local  variations,  however,  are  observable  in 
the  customs  regulating  these  matters.  Thus  the  municipal 
laws  of  Rheims,  in  the  fourteenth  century,  not  only  restrict 
the  admission  of  champions  in  criminal  matters  to  cases 
in  which  age  or  physical  disability  may  incapacit ate  the 
principals  from  personally  taking  part  in  the  combat,  but 
also  require  the  accused  to  swear  that  the  impediment  has 
supervened  since  the  commission  of  the  alleged  offence, 
thus  in  fact  assuming  his  guilt ;  and  even  this  was  of  no 

1  Assises  de  Jerusalem,  cap.  145,  146. — Beaumanoir,  cap.  lxi.  §  6  |  cap. 
Ixiii.  §  4. 

2  Beaumanoir  cap.  lxi.  §  14. — The  distinction  between  civil  and  criminal 
practice  is  very  clearly  drawn  by  Pierre  de  Fontaines,  who  states  that  in 
appeal  of  judgment  the  appellant  in  criminal  cases  is  bound  to  show  satis- 
factory cause  for  employing  a  champion,  while  in  civil  affairs  the  right  to  do 
so  requires  no  argument. — "Quant  aucuns  fause  jugement,  par  lui  et  par 
son  avoee,  come  horn  qui  a  essoine,  mostrer  doit  son  essoine,  se  l'en  li  re- 
quiert,  puisque  li  fausemenz  est  faiz  en  point  qu'il  ipeustvie  perdre  ;  mes  se 
vie  n'i  cort,  il  n'est  mie  tenuz  de  mostrer  essoine  ;  car  toz  sanz  essoine  peut- 
il  metre  avoe  la  ou  vie  ne  gist  ou  menbres." — Conseil,  chap.  xxn.  Tit.  xiii. 

3  II  est  usage  que  se  aucun  demende  la  cort  de  bataille  qui  est  juege  par 
champions  loees,  il  la  tendra  le  jor  maimes,  et  si  ele  est  par  le  cors  des  que- 
releors  il  metra  jor  avenant  a  la  tenir  autre  que  celui. — Coutumes  d'Anjou, 
XHI.e  Siecle,  $  74. 

*  Kar  haute  personedoit  bien  metre  por  lui,  a  deffendre  soi,  home,  honeste 
persone,  se  l'an  l'apele,  ou  s'il  apele  autre. — Livres  de  Jostice  et  de  Plet,  Liv. 
II.  Tit.  xviii. 


SI 


130  THE    WAGER    OP    BATTLE. 

avail  if  the  prosecutor  had  included  in  his  appeal  of  battle 
an  assertion  that  such  disability  had  existed  at  the  time 
specified.1  Witnesses  obliged  to  support  their  testimony  by 
the  duel  were  not  only  subject  to  the  same  restrictions,  but 
in  substituting  a  hired  gladiator  were  obliged  to  swear  that 
they  had  vainly  sought  among  their  friends  for  some  one 
to  voluntarily  assume  the  office.2  The  whole  tenor  of  these 
provisions,  indeed,  manifests  a  decided  intention  to  surround 
the  employment  of  champions  with  every  practicable  impe- 
diment. In  Beam,  again,  the  appellant  in  cases  of  treason 
had  a  right  to  decide  whether  the  defendant  should  be 
allowed  to  put  forward  a  substitute,  and  from  the  expres- 
sions in  the  text  it  may  be  inferred  that  in  the  selection  of 
champions  there  was  an  endeavor  to  secure  equality  of 
age,  size,  and  strength.3  This  equalization  of  chances  was 
thoroughly  carried  out  in  the  Veronese  code  of  1228,  where, 
as  has  been  seen,  the  champions  were  a  recognized  body, 
regulated  and  controlled  by  the  state.  The  magistrate 
was  bound  to  choose  gladiators  of  equal  prowess,  and  the 
choice  between  them  was  then  given  to  the  defendant : 
an  arrangement  which  rendered  the  mutilation  inflicted  on 
the  vanquished  combatant  only  justifiable  on  the  score  of 
suspected  treachery.4  By  the  Spanish  law  of  the  thirteenth 
century,  the  employment  of  champions  was  so  restricted  as 
to  show  an  evident  desire  on  the  part  of  the  legislator  to 

1  Nee  potest  alter  eorum  campionem  ponere,  nisi  propter  statum,  vel  cor- 
poris infirmitatem  ;  nee  auditur  reus  de  morbo  tempore  quo  dicitur  crimen 
commisisse  ;  quod  si  velit  jurare  impedimentum  post  illud  tempus  super  eum 
venisse,  audietur,  nisi  actor  in  vadio  belli  addiderit,  scilicet  quod  cum  tali 
morbo  crimen  commiserit — Lib.  Pract.  de  Consuet.  Remens.  §  40.  (Archives 
Legisl.  de  Reims,  Pt.  I.  p.  40.) 

3  Etiam  antequam  campionem  possit  quis  ponere,  jurare  debet  quod  bona 
fide  amico3  suos  requisivit  quod  pro  ipso  bellum  facerent. — Ibid.  §  14,  p.  37. 

3  For  de  Morlaas,  Rubr.  liii.  art.  188. 

4  Omnes  camphiones  .  .  .  per  me  vel  per  judices  communis  Veronae,  sive 
consules,  bona  fide  cocoquabo  :  facta  cosequatione,  defendenti  electionem 
dabo. — L.  Municip.  Veronens.  cap.  126. 


CHAMPIONS    FOR    COMMUNITIES.  131 

discourage  it  as  far  as  possible.  The  defendant  had  the 
right  to  send  a  substitute  Into  the  field,  but  the  appellant 

Could  do  so  only  by  consent  of  his  adversary.  The  cham- 
pion was  required  to  be  of  birth  equal  to  his  principal, 
which  rendered  the  hiring  of  champions  almost  impossible, 
and  not  superior  to  him  in  force  and  vigor.  Women  arid 
minors  appeared  by  their  next  of  kin,  and  ecclesiastics  by 
their  advocates.1  In  Russia,  until  the  sixteenth  century, 
champions  were  never  employed,  contestants  being  alwa}^s 
obliged  to  appear  in  person.  In  1550,  the  code  known  as 
the  Soudebtnick  at  length  permitted  the  employment  of 
champions  in  certain  cases.8 

There  were  two  classes  of  pleaders,  however,  with  whom 
the  hiring  of  champions  was  a  necessity,  and  who  could 
not  be  bound  by  the  limitations  imposed  on  ordinary  liti- 
gants. While  the  sexagenary,  the  infant,  and  the  crippled 
might  possibly  find  a  representative  among  their  kindred, 
and  while  the  woman  might  appear  by  her  husband  or  next 
of  kin,  the  ecclesiastical  foundations  and  chartered  towns 
Bad  no  such  resource.  Their  frequent  occasion  for  this 
species  of  service,  therefore,  led  to  the  employment  of  regu- 
larly appointed  champions,  who  fought  their  battles  for  an 
annual  stipend,  or  for  some  other  advantages  bestowed  in 
payment.  Du  Cange,  for  instance,  gives  the  text  of  an  agree- 
ment by  which  one  Geoffry  Blondel,  in  1256,  bound  himself 
to  the  town  of  Beauvais  as  its  champion  for  a  yearly  salary 
of  twenty  sous  Parisis,  wuth  extra  gratifications  of  ten  livres 
Tournois  every  time  that  he  appeared  in  arms  to  defend  its 
cause,  fifty  livres  if  blows  were  exchanged,  and  a  hundred 
livres  if  the  combat  were  carried  to  a  triumphant  issue.  It 
is  a  little  singular  that  Beaumanoir,  in  digesting  the  customs 
of  Beauvais  but  a  few  years  later,  speaks  of  this  practice  as 
an  ancient  and  obsolete  one,  which  he  had  only  heard  of 

1  Las  Siete  Partidas,  Pt.  TO.  Tit.  iv.  1.  3. 

-  Du  Boys,  Droit  Criminel  des  Peuples  Modernes,  I.  611-13. 


132  THE    WAGER    OF    BATTLE. 

through  tradition.1  That  it  continued  to  be  in  vogue  until 
long  after,  is  shown  by  Monteil,  who  alludes  to  several 
documents  of  the  kind,  bearing  date  as  late  as  the  fifteenth 
century.3 

The  champions  of  the  church  occupied  a  higher  position, 
and  were  bound  to  defend  the  interests  of  their  clients  in 
the  field  as  well  as  in  the  court  and  in  the  lists ;  they  also 
led  the  armed  retainers  of  the  church  when  summoned  by 
the  suzerain  to  national  war.  The  office  was  honorable 
and  lucrative,  and  was  eagerly  sought  by  gentlemen  of 
station,  who  turned  to  account  the  opportunities  of  ag- 
grandizement which  it  afforded;  and  many  a  noble  family 
traced  its  prosperity  to  the  increase  of  ancestral  property 
thus  obtained,  directly  or  indirectly,  by  espousing  the 
cause  of  fat  abbeys  and  wealthy  bishoprics.3  The  influence 
of  feudalism  early  made  itself  felt,  and  the  office  of  Vidame 
or  Avoue  became  generally  hereditary.  In  many  instances, 
it  was  a  consideration  obtained  for  donations  bestowed 
upon  churches,  so  that  in  some  countries,  and  particularly 

1  Une  malvese  coustume  souloit  courre  aneiemment,  si  comrae  nos  avons 
entendu  des  seigneurs  de  lois. — Cout.  du  Beauvoisis,  cap.  xxxviii.  §  15. 

s  Hist,  des  Francais,  XVC  Siccle,  Hist.  xiii. — The  tariff  of  rewards  paid  to 
Blondel,  and  Beaumanoir's  argument  in  favor  of  mutilating  a  defeated 
champion,  offer  a  strong  practical  commentary  upon  the  fundamental  princi- 
ple on  which  the  whole  system  of  appeals  to  the  judgment  of  God  was  based 
— that  success  was  an  evidence  of  right. 

3  Thus,  in  the  ninth  century,  the  abbot  of  Figeac,  near  Cahors,  bestowed 
on  a  neighboring  lord  sixty  churches  and  five  hundred  mansi,  on  condition 
of  his  fighting  the  battles  of  the  abbey,  "cum  necessitas  posceret,  solo 
jussu,  absque  lucro  alio  temporali,  bella  abbatis  et  suorum  pracliaretur." — 
Hist.  Monast.  Figeacens. — (Baluz.  et  Mansi  IV.  p.  1.)  When  feudalism 
fixed  these  chieftains  firmly  in  possession,  they  rendered  themselves  inde- 
pendent of  their  benefactors.  This  process  is  graphically  described  by  St. 
Abbq  of  Fleury,  about  the  year  996 — "  Defensores  ecclesiarum  qui  dicuntur 
hodie,  contra  auctoritatem  legum  et  canonum  sibi  defendunt  quod  fuerat 
juris  ecclesiarum,  sicque  violentiam  clericis  et  monachis  ingerendo,  res  ec- 
clesiarum seu  monasteriorum  usufructuario  diripiunt,  colonosin  paupertatem 
redigunt,  possessiones  ecclesiarum  non  augent  sed  minuunt,  et  quorum 
defensores  esse  debuerant,  eos  vastant." — Collect.  Canonum,  can.  ii. 


OPPOSITION    OP    Tin:    OHUBCH.  181 

in  England,  the  title  of  mdvooatu*  became  gradually  recog- 
nised as  By  nonymous  with  patron.  Thus,  one  of  the  worst 
abuses  of  the  Anglican  church  is  derived  from  this  source, 

and  the  forgotten  wrongs  of  the  Middle  Ages  are  perpetu- 
ated, etymologically  si  least.  In  the  advowson  which  ren- 
der- the  cure  of  souls  too  often  a  matter  of  bargain  and 

salt'. 

The  elasticity  with  which  the  duel  lent  itself  to  the  ad- 
vantage of  the  turbulent  and  unscrupulous  is  well  illus- 
trated in  a  document  containing  the  proceedings  of  an 
assembly  of  local  magnates  in  888,  to  decide  a  contention 
Concerning  the  patronage  of  the  Church  of  Lessingon. 
Alter  the  testimony  on  one  side  had  been  given,  the  oppo- 
site party  commenced  in  reply,  when  the  leaders  of  the 
liiMy,  seizing  their  swords,  vowed  that  they  would 
affirm  the  truth  of  the  first  pleader's  evidence  with  t*heir 
blood  before  King  Arnoul  and  his  court — and  the  case  was 
decided.1  The  strong  and  the  bold  are  apt  to  be  the  ruling 
classes  in  all  times,  and  were  emphatically  so  in  those  rude 
-  of  scarcely  curbed  violence  when  the  jurisprudence  of 
the  European  commonwealths  was  forming  itself,  and  to 
the  immense  advantages  which  the  wager  of  battle  afforded 
to  those  classes  may  be  attributed  the  wide-spread  influence 
which  it  enjoyed. 

Its  only  consistent  opponents  were  found  among  eccle-  V 
siasi  ics.  When  King  Gundobald  gave  it  form  and  shape  in 
digesting  the  Burgundian  laws,  Avitus,  Bishop  of  Vienne, 
remonstrated  loudly  against  the  practice  as  unjust  and 
unchristian.  A  new  controversy  arose  on  the  occasion 
of  the  duel  between  the  Counts  Bera  and  Sanila,  to  which 
reference  has  been  made  as  an  important  event  in  the 
reign   of  Louis-le-Debonnaire.     St.  Agobard,  Archbishop 

1  Optimates  ejusdem  concilii,  apprehensis  epatis  suis,  devotaverunt  se  haec 
ita  affirmaturos  esse  coram  regibus  et  cunctis  principibus  usque  ad  sanguinis 
effusionem. — Goldast.  Antiq.  A  lam  an  n.  chart.  Ixxxv. 
12 


134  THE    WAGER    OF     BATTLE. 

of  Lyons,  took  advantage  of  the  occasion  to  address  to 
the  Emperor  a  treatise,  in  which  he  strongly  deprecated 
the  appeal  to  arms,  as  well  as  the  employment  of  ordeals, 
in  settling  judicial  questions,  and  he  subsequently  wrote 
another,  consisting  principally  of  scriptural  texts  with  a 
running  commentary,  proving  their  incompatibility  with 
so  unchristian  a  practice.1  Some  thirty-five  years  after- 
wards, the  Council  of  Valence,  in  855,  denounced  the  battle 
trial  in  the  most  decided  terms,  praying  the  Emperor  Lo- 
thair  to  abolish  it  throughout  his  dominions,  and  adopting 
a  canon  which  excommunicated  the  victor  in  such  contests, 
and  refused  the  rites  of  Christian  sepulture  to  the  victim.2 
Pope  Nicholas  I.3  and  other  pontiffs  protested  against  it,  and 
exerted  themselves  energetically,  to  procure  its  abandon- 
ment. All  this  was  totally  without  effect.  If  Charlemagne, 
in  dividing  his  vast  empire,  forbade  the  employment  of  the 
wager  of  battle  in  settling  the  territorial  questions  which 
might  arise  between  his  heirs,4  the  prohibition  merely  shows 
that  it  was  habitually  used  in  affairs  of  the  highest  mo- 
ment, and  the  constant  reference  to  it  in  his  laws  proves 
that  it  was  in  no  way  repugnant  to  his  general  sense  of 
justice  and  propriety. 

The  next  century  affords  ample  evidence  of  the  growing 
favor  in  which  the  judicial  combat  was  held.  About  the 
year  930,  Hugh,  King  of  Provence  and  Italy,  becoming 
jealous  of  his  uterine  brother,  Lambert,  Duke  of  Tuscany, 
asserted  him  to  be  a  supposititious  child,  and  ordered  him 

1  "Liber  ad  versus  Legem  Gundobadi"  and  "Liber  contra  Judicium  Dei." — 
(Agobardi  Opera,  ed.  Baluzii,  I.  107,  301.)  Both  these  works  display  marked 
ability  and  a  spirit  of  enlightened  piety,  mingled  with  frequent  absurdities, 
which  show  that  Agobard  could  not,  in  all  things,  rise  superior  to  the  preju- 
dices of  his  age.  One  of  his  favorite  arguments  is  that  the  battle  ordeal 
was  approved  by  the  Arian  heretic  Gundobald,  whom  he  stigmatizes  as 
"  quidam  superbus  ac  stultus  haereticus  Gundobadus  Burgundionum  rex." 

2  Concil.  Valentin,  ann.  855  can.  12. 

3  Can.  Monomachiam  Caus.  n.  q.  v. 

4  Nee  unquam  pro  tali  caussa  cujuslibet  generis  pugna  vel  campus  ad 
examinationem  judicetur. — Carol.  Mag.  Chart.  Divisionis  ann.  806  cap.  xiv. 


OTHO    THE    GREAT.  1  ."»."> 

in  future  to  claim  no  relationship  between  them.  Lambert, 
being  "vir  .  .  .  bellicosus  et  ad  quodlibet  facinus  audax," 
contemptuously  denied  the  aspersion  on  his  birth,  and 
offered  to  clear  all  doubts  on  the  subject  by  the  wager 
of  battle.  Hugh  accordingly  selected  a  warrior  named 
Temlinus  as  his  champion;  Lambert  was  victor  in  the 
ensuing  combat,  and  was  universally  received  as  the  un- 
doubted son  of  his  mother.  His  triumph,  however,  was 
illegally  brought  to  a  sudden  close,  for  Hugh  soon  after 
succeeded  in  making  him  prisoner  and  deprived  him  of  eye- 
sight.1 Still,  some  enlightened  ecclesiastics  continued  to 
denounce  the  practice,  represented  by  Atto,  Bishop  of  Ver- 
celli,  who  declared  it  to  be  totally  inapplicable  to  church- 
men and  not  to  be  approved  for  laymen  on  account  of  the 
uncertainty  of  its  results  ;9  but  representations  of  this  kind 
were  useless.  About  the  middle  of  the  century,  Otho  the" 
Oreat  appears,  throwing  the  enormous  weight  of  his  influ- 
ence in  its  favor.  As  a  magnanimous  and  warlike  prince, 
the  wager  of  battle  appears  to  have  possessed  peculiar  attrac- 
tions for  his  chivalrous  instincts,  and  he  extended  its  appli- 
cation as  far  as  lay  in  his  power.  Not  only  did  he  force  his 
daughter  Liutgarda,  in  defending  herself  from  a  villanous 
accusation,  to  forego  the  safer  modes  of  purgation,  and  to 
submit  herself  to  the  perilous  decision  of  a  combat,3  but  he 
also  caused  the  abstract  question  of  representation  in  the 
succession  of  estates  to  be  settled  in  the  same  manner ;  and 
to  this  day  in  Germany  the  division  of  a  patrimony  among 
children  and  grandchildren  is  regulated  in  accordance  with 
the  law  enacted  by  the  doughty  arms  of  the  champions  who 
fought  together  nine  hundred  years  ago  at  Steil.4  There  was 

1  Luitprandi  Antapodos.  Lib.  ill.  cap.  46. 

2  Sed  istud  judicium  quorundnm  laicorum  solummodo  est,  quod  nee  ipsis 
etiam  omnino  approbatur.  Nam  ssepe  innocentes  victi,  nocentes  vero 
yictores  in  tali  judicio  esse  videntur. —  (De  Pressuris  Eccles.  Pt.  II.)  This 
was  written  about  945. 

3  Dithmari  Chron.  Lib.  II.  ann.  950. 

4  Widukind.  Rer.  Saxon.  Lib.  n.   cap.   x. — The  honest  chronicler  con- 


136  THE    WAGER    OP    BATTLE. 

no  question,  indeed,  which  according  to  Otho  could  not  be 
satisfactorily  settled  in  this  manner.  Thus  when,  in  963,  he 
was  indulging  in  the  bitter  recriminations  with  Pope  John 
XII.  which  preceded  the  subjugation  of  the  papacy  under 
the  Saxon  emperors,  in  sending  Bishop  Liutprand  to  Rome 
to  repel  certain  accusations  brought  against  him,  he  ordered 
the  armed  followers  of  his  ambassador  to  sustain  his  asser- 
tions by  the  duel:  a  proposition  promptly  declined  by  the 
pontiff,  skilled  though  he  was  in  the  use  of  weapons.1  A 
duellist,  in  fact,  seems  to  have  been  reckoned  a  necessary 
adjunct  to  diplomacy,  for  when,  in  968,  the  same  Liutprand 
was  dispatched  by  Otho  to  Constantinople  on  a  matri- 
monial mission,  and  during  the  negotiations  for  the  hand 
of  Theophania  a  discussion  arose  as  to  the  circumstances 
which  had  led  to  Otho's  conquest  of  Italy,  the  warlike 
prelate  offered  to  prove  his  veracity  by  the  sword  of  one 
of  his  attendants :  a  proposition  which  put  a  triumphant 
end  to  the  argument.8 

Nor  was  the  readiness  to  commit  the  mightiest  interests 
to  the  decision  of  the  judicial  duel  confined  to  Germany 
and  Lombardy.  When,  in  948,  at  the  Synod  of  Ingelheim, 
Louis  d'Outremer  invoked  the  aid  of  the  church  in  his 
death-struggle  with  the  rising  race  of  Capet,  he  closed  the 
recital  of  the  wrongs  endured  at  the  hands  of  Hugh-le- 
Grand  by  offering  to  prove  the  justice  of  his  complaints  in 
single  combat  with  the  aggressor.3  When  the  battle  ordeal 
was  thus  thoroughly  incorporated  in  the  manners  of  the 
age,  we  need  scarcely  be  surprised  that,  in  a  life  of  St. 

siders  that  it  would  have  heen  disgraceful  to  the  nobility  to  treat  questions 
relating  to  them  in  a  plebeian  manner.  "  Rex  autem  meliori  consilio  usus, 
noluit  viros  nobiles  ae  senes  populi  inhoneste  tractari,  sed  magis  rem  inter 
gladiatores  discerni  jussit."  In  both  these  cases  Otho  may  be  said  to  have 
had  ancient  custom  in  his  favor.  See  L.  Longobard.  Lib.  I.  Tit.  xii.  §  2. — 
L.  Alamann.  cap.  lvi.,  lxxxiv.  ;  Addit.  cap.  xxn. 

1  Liutprandi  Hist.  Otton.  cap.  vii. 

2  Liutprandi  Legat.  cap.  vi. 

3  His  si  dux  contraire  audeat,  nobis  tantum  singulariter  congrediendum 
sit. — Conquest.  Ludov.  in  Synod.  Ingilheim.  ann.  948. 


otiio  ii.  13t 

Matilda,  written  by  command  of  her  son  Otho  the  Great, 
tin*  author,  after  describing  the  desperate  struggles  of  the 
Saxons  against  Charlemagne,  should  gravely  inform  us 
that  the  war  was  at  last  concluded  by  a  duel  between  the 
Christian  hero  and  his  great  antagonist  Witikind,  religion 
and  empire  being  both  staked  on  the  issue  as  the  prize  of 
the  victor;  nor  does  the  pious  chronicler  shudder  at  the 
thought  that  the  destiny  of  Christianity  was  intrusted  to 
the  sword  of  the  Frank.1 

The  second  Otho  was  fully  imbued  with  his  father's 
views,  and  so  completely  did  he  carry  them  out,  that  in 
the  Lombard  law  he  is  actually  credited  with  the  intro- 
duction of  the  duel.3  In  the  preceding  essay,  allusion  has 
been  made  to  his  substitution  of  the  judicial  combat  for 
the  sacramental  oath  in  983,  and  about  the  same  period,  he 
made  an  exception,  in  favor  of  the  battle  ordeal,  to  the  im- 
memorial policy  of  the  barbarians  which  permitted  to  all 
subject  races  the  enjo3rment  of  their  ancestral  usages.  At 
the  council  of  Yerona,  where  all  the  nobles  of  Italy,  secular 
and  ecclesiastical,  were  assembled,  he  causecl  the  adoption 
of  a  law  which  forced  the  Italians  in  this  respect  to  follow 
the  customs  of  their  conquerors.3  Even  the  church  was 
deprived  of  any  exemption  which  she  might  previously 
have  enjoyed,  and  was  only  allowed  the  privilege  of  ap- 
pearing by  her  "advocati"  or  champions.4  There  were 
small  chances  of  escape  from  the  stringency  of  these  regu- 
lations, for  an  edict  of  Otho  I.  in  91 1  had  decreed  the 

1  Utrisque  placuit  principibus,  ut  ipsi  singuli  invicem  dimicaturi  consur- 
gerent,  et  cui  sors  victoriam  contulisset,  ipsi  totus  exercitus  sine  dubio 
pareret. — S.  Mathild.  Regin.  Vit.  c.  1. 

3  Nos  belli  dono  ditat  rex  maximus  Otto. 

3  Quacunque  lege,  sive  etiam  Romana,  in  omni  regno  Italico  homo  vixeret, 
haec  omnia  ut  in  his  capitulis  per  pugnam  decernimus  observare. — L.  Longo- 
bard.  Lib.  n.  Tit.  lv.  §  38. 

*  De  ecclesiarum  rebus  ut  per  advocatos  fiat  similiter  jubemus. — Ibid. 
$  34. 

12* 


v 


138  THE    WAGER    OP    BATTLE. 

punishment  of  confiscation  against  any  one  who  should 
refuse  to  undergo  the  chances  of  the  combat.1 

Under  such  auspices,  and  stimulated  by  the  rising  spirit 
of  chivalry,  it  is  no  wonder  that  the  judicial  duel  acquired 
fresh  importance,  and  was  more  extensively  practised  than 
ever.  From  the  wording  of  a  constitution  of  the  Emperor 
Henry  II.,  it  may  even  be  assumed  that  in  the  early  part 
of  the  eleventh  century  it  was  no  longer  necessary  that 
there  should  be  a  doubt  as  to  the  guilt  of  the  accused  to 
entitle  him  to  the  privileges  of  the  combat,  and  that  even 
the  most  notorious  criminal  could  have  a  chance  of  escape 
by  an  appeal  to  the  sword.3 

Thus  it  came  to  pass  that  nearly  every  question  that 
could  possibly  arise  was  finally  deemed  liable  to  the 
decision  of  the  wager  of  battle.  If  Oth o  the  Great  em- 
ployed champions  to  legislate  respecting  a  disputed  point 
of  law,  he  was  not  more  eccentric  than  the  Spaniards, 
who  settled  in  the  same  manner  a  controversy  regarding 
the  canonical  observances  of  religion  when  the  fiery  and 
indomitable  Hildebrand  endeavored  to  force  the  introduc- 
tion of  the  Roman  liturgy  into  Castile  and  Leon,  in  lieu  of 
the  national  Gothic  or  Mozarabic  rite.  With  considerable 
difficulty,  some  years  before,  Navarre  and  Aragon  had  been 
led  to  consent  to  the  change,  but  the  Castilians  were  dog- 
gedly attached  to  the  observances  of  their  ancestors,  and 
stoutly  refused  compliance.  In  1077,  Alfonso  I.  procured 
the  assent  of  a  national  council,  but  the  people  rebelled, 
and  after  repeated  negotiations  the  matter  was  finally 
referred  to  the  umpirage  of  the  sword.  The  champion  of 
the  Gothic  ritual  was  ^victorious,  and  tradition  adds  that 
a  second  trial  was  made  by  the  ordeal  of  fire ;  a  missal  of 

1  Si  non  audeat,  res  suae  infiscentur. — Convent.  Papiens.  ann.  971. 

9  Qui  vero  infra  treugam,  post  datum  osculum  pacis,  alium  hominem  in- 
terfecerit,  et  negare  voluerit,  pugnam  pro  se  faciat. — L.  Longobard.  Lib.  i. 
Tit.  ix.  §  38. 


OHIO    OP    BAVARIA.  189 

caeh  Idnd   was  thrown   into  the  Jlames,  and    the   national 
liturgy  emerged  (triumphantly  unscathed*1 

Nearly  contemporary  with  this  was  the  celebrated  case 
of  Otho,  Duke  of  Havana,  perhaps  the  most  noteworthy 
CCample  of  a  judicial  appeal  to  the  sword,  as  it  proved 
the  commencement  of  the  terrible  Saxon  war,  and  of  the 
troubles  wliieh,  aggravated  by  the  skilful  hand  of  Hihle- 
brand,  pursued  the  unfortunate  Emperor  Henry  IV.  to  the 
grave,  and  did  so  much  to  establish  the  temporal  supremacy 
of  the  papacy.  A  worthless  adventurer,  named  Egeno, 
accused  the  proud  and  powerful  Otho  of  conspiring  against 
the  Emperor's  life.  In  a  diet  held  at  Mainz,  the  duke  was 
commanded  to  disprove  the  charge  by  doing  battle  with  his 
accuser  within  six  weeks.  According  to  some  authorities, 
his  pride  revolted  at  meeting  an  adversary  so  far  his  infe- 
rior;  according  to  others,  he  was  prevented  from  appearing 
in  the  lists  only  by  the  refusal  of  the  Emperor  to  grant 
him  a  safe  conduct.  Be  this  as  it  may,  the  appointed  term 
elapsed,  his  default  of  appearance  caused  judgment  to  be 
taken  against  him,  and  his  duchy  was  confiscated  accord- 
ingly. It  was  bestowed  on  Welf,  son  of  Azo  d'Este  and  of 
Cunigunda,  descendant  and  heiress  of  the  ancient  Guelfic 
Agilolfings;  and  thus,  on  the  basis  of  a  judicial  duel,  was 
founded  the  second  Bavarian  house  of  Guelf,  from  which 
have  sprung  so  many  royal  and  noble  lines,  including  their 
Guelfic  Majesties  of  Britain.  Some  years  later,  the  Em- 
peror himself  offered  to  disprove  by  the  same  means  a 
similar  accusation  brought  against  him  by  Duke  Reginger, 
of  endeavoring  to  assassinate  his  rival,  Rodolph  of  Swabia. 
A  day  was  appointed  for  the  combat,  which  was  prevented 
only  by  the  opportune  death  of  Reginger.9 

Scarcely  less  impressive  in  its  results,  and  even  more 
remarkable  in  itself,  as  exhibiting  the  duel  invested  with 

1  Ferreras,  Hist.  Gen.  d'Espagne,  Trad.  d'Hermilly,  III.  245. 
■  Lambert.  Schaffnab.  ann.  1070,  1073,  1074.— Conrad.  Ursperg.  ann.  1071. 
— Bruno  de  Bello  Saxonico. 


140  THE    WAGER    OF    BATTLE. 

legislative  as  well  as  judicial  functions,  is  the  case  wherein 
the  wager  of  battle  was  employed  in  1180  to  break  the 
overgrown  power  of  Henry  the  Lion.  That  puissant 
Duke  of  Saxony  and  Bavaria  had  long  divided  the  power 
of  the  Empire,  and  defied  the  repeated  efforts  of  Frederic 
Barbarossa  to  punish  his  constantly  recurring  rebellions. 
Cited  to  appear  and  answer  for  his  crimes  in  successive 
diets,  he  constantly  refused,  on  the  plea  that  the  law 
required  him  to  have  a  trial  within  his  own  dominions. 
At  length,  in  the  diet  of  Wurtzburg,  a  noble  arose  and 
declared  himself  ready  to  prove  by  the  single  combat  that 
the  Emperor  could  legally  cite  his  princes  before  him  at 
any  place  that  he  might  select  within  the  limits  of  the  em- 
pire. Of  course  there  was  none  to  take  up  the  challenge, 
and  Frederic  was  enabled  to  erect  the  principle  thus  asserted 
into  a  binding  law.  Henry  was  condemned  by  default,  and 
his  confiscated  possessions  were  shared  between  those  who 
had  arranged  and  enacted  the  comedy.1 

To  such  an  extent  was  carried  the  respect  entertained  for 
the  judicial  duel,  that,  by  the  English  law  of  the  thirteenth 
century,  a  pleader  was  sometimes  allowed  to  alter  the  record 
of  his  preliminary  plea,  by  producing  a  man  who  would 
offer  to  prove  with  his  body  that  the  record  was  incorrect, 
the  only  excuse  for  the  absurdity  being  that  it  was  only 
allowed  in  matters  which  could  not  injure  the  other  side;3 
and  a  malefactor  turning  king's  evidence  was  obliged,  be- 
fore receiving  his  pardon,  to  pledge  himself  to  convict  all 
his  accomplices,  if  required,  by  the  duel.3     The  implicit 

1  Conrad.  Ursperg.  ann.  1175. — Cumque  nullus  isti  se  offerret  ad  pugnam 
edicto  Imperatoris  praefata  sententia  pro  jure  perpetuo  statuta  est,  quain  non 
dubium  est  autoritate  et  ratione  firmari. 

3  Et  statim  hoc  probareper  unum  audientem  et  intelligentem,  qui  ineonti- 
nenti  paratus  sit  hoc  probare  per  corpus  suum,  si  curia  consideraverit.  Et 
sic  poterit  quis  recordum  suum  mutare,  augere,  et  minuere,  quia  ex  hoc 
nullum  damnum  habebit  adversarius. — Bracton.  Lib.  HI.  Tract,  ii.  cap. 
37  §  5. 

3  Ibid.  cap.  33  §  2,  and  34  §  2. 


EXPLANATION  OF  DOUBTFUL  CASES.    141 

confidence  inspired  by  the  duel  is  well  illustrated  by  a  case 
which  occurred  about  the  year  lino.  A.  sacrilegious  thief 
named  Anselm  stole  the  sacred  vessels  from  the  church  of 
toon  and  sold  them  to  a  merchant,  from  whom  he  exacted 
an  oath  of  secrecy.  Frightened  at  the  excommunications 
fulminated  by  the  authorities  of  the  plundered  church,  the 
unhappy  traitor  revealed  the  name  of  the  robber.  Anselm 
denied  the  accusation,  offered  the  wager  of  battle,  defeated 
the  unfortunate  receiver  of  stolen  goods,  and  was  proclaimed 
innocent.  Encouraged  by  impunity,  he  repeated  the 
offence,  and  after  his  conviction  by  the  ordeal  of  cold  water, 
he  confessed  the  previous  crime.  The  doubts  cast  by  this 
event  on  the  efficacy  of  the  judicial  combat  were,  however, 
happily  removed  by  the  suggestion  that  the  merchant  had 
suffered  for  the  violation  of  the  oath  which  he  had  sworn  to 
Anselm  ;  and  the  reputation  of  the  du$l  remained  intact.1 

It  may  readily  be  imagined  that  cases  of  this  nature  fre- 
quently arose,  and  as  they  often  did  not  admit  of  so  inge- 
nious an  explanation  of  the  criminal's  escape,  legal  casuists 
assumed  a  condition  of  being,  guilty  in  the  sight  of  God,  but 
not  in  that  of  man — a  refinement  of  speculation  which  even 
finds  place  in  the  German  codes  of  the  thirteenth  century  ;a 
and  men  contented  themselves  then,  as  they  do  still,  with 
predicting  future  misfortunes  and  an  eternity  of  punish- 
ment.    The  more  direct  solution,  in  cases  of  unjust  con- 

1  Guibert.  Noviogent.  de  Vita  sua  Lib.  in.  cap.  xvi. — Hermann,  de 
Mirac.  S.  Maria;  Laudun.  Lib.  iv.  cap.  28. — Forsitan  ut  multi  putarunt,  pro 
fidei  violatae  reatu,  qua  promiserat  fidem  Anselmo,  quod  earn  non  detegeret. 
(Du  Cange.) 

3  Und  diser  vor  Got  scbuldig,  und  vor  den  luten  nit. — (Jur.  Provin.  Ala- 
mann.  cap.  ccxix.  §  8.)  This  is  a  provision  for  oases  in  which  a  thief  accuses 
a  receiver  of  having  suggested  and  assisted  the  crime.  They  are  made  to 
fight,  when,  if  the  receiver  is  worsted,  both  are  hanged  ;  if  the  thief,  he  alone, 
and  the  receiver  escapes  though  criminal.  The  French  version  enlarges 
somewhat  on  the  principle  involved  :  "  Se  il  puet  vancre  lautre  il  est  quites 
et  li  autre  sera  panduz.  et  sera  an  colpe  anver  lo  munde  et  anver  dex  andui. 
ce  avient  a  assez  de  genz,  que  aucons  sunt  an  colpe  anver  dex  et  ne  mie  anver 
le  seigle." — (Miroir.  de  Souabe,  P.  II.  c.  vi.) 


142  THE    WAGER    OP    BATTLE. 

demnation,  was  very  much  like  that  which  justified  the 
defeat  of  Anselm's  merchant — that  the  unfortunate  victim, 
though  innocent  of  the  special  offence  charged,  suffered  in 
consequence  of  other  sins.  This  doctrine  was  even  sup- 
ported by  the  infallible  authority  of  the  papacy,  as  enun- 
ciated in  1212  by  Innocent  III.  in  -a  case  wherein  the 
priory  of  St.  Sergius  was  unjustly  convicted  of  theft  by  the 
judicial  duel,  and  its  possessions  were  seized  in  consequence 
by  the  authorities  of  Spoleto.1  That  the  combatants  them- 
selves did  not  always  feel  implicit  confidence  in  the  justice 
of  the  event,  or  rely  solely  upon  the  righteousness  of  their 
cause,  is  shown  by  the  custom  of  occasionally  bribing 
Heaven  either  to  assist  the  right  or  to  defend  the  wrong. 
Thus,  in  the  eleventh  century,  we  find  the  monastery  of  St. 
Peter  at  Beze  in  the  enjoyment  of  certain  lands  bestowed 
on  the  Saint  by  Sir,  Miles  the  Stammerer,  who  thus  en- 
deavored to  purchase  his  assistance  in  a  combat  about  to 
take  place — a  bargain  no  doubt  highly  appreciated  by  the 
worthy  friars.2 

Notwithstanding  the  wrong  and  injustice  wrought  by  the 
indiscriminate  and  universal  application  of  so  senseless  a 
custom,  it  was  so  thoroughly  engrafted  in  the  convictions 
and  prejudices  of  Europe  that  centuries  were  requisite  for 
its  extirpation.  Curiously  enough,  the  earliest  decisive 
action  against  it  took  place  in  Iceland,  where  it  was  for- 
mally interdicted  as  a  judicial  proceeding  in  1011  ;3  and 
though  the  assumption  that  this  was  owing  to  the  intro- 
duction of  Christianity  has  been  disproved,  still  the  fact 
that  both  events  were  contemporaneous  allows  us  to  con- 
clude that  the  teachings  of  the  true  religion  had  a  powerful 

1  Can.  Significantibus,  Extra,  De  Purgatione  Vulgari. — "  Duellum  in  quo 
aliis  peccatis  suis  praepedientibus,  ceciderunt." 

3  Isdem  quoque  Milo  .  .  .  monomachi  certaturus  pugna,  attribuit  sancto 
Petro  terram  quam  habebat  in  Lueo,  prope  atrium  ecclesiae,  quo  sibi  adjutor 
in  disposito  bello  existerit. — Chron.  Besuense,  Chart,  de  Luco. 

3  Schlegel,  Comment,  ad  Grag&s,  p.  xxii. 


INFLUENCE    OP    THE    COMMUNES.  143 

influence  in  leading  the  inhabitants  to  abandon  their  an- 
cestral  custom.  The  Danes  were  the  first  to  follow  the 
example,  Indeed,  Saxo  Grammaticns  in  one  passage 
attributes  to  them  the  priority,  asserting  that  when  Poppo 
in  965  converted  Harold  Blaatand  by  the  ordeal  of  red- 
hot  iron,  it  produced  so  powerful  an  effect  as  to  induce 
the  substitution  of  that  mode  of  trial  for  the  previously 
existing  wager  of  battle.1  Yet  it  evidently  was  not  abro- 
gated for  a  century  later,  for  when  Harold  the  Simple,  son 
of  Sven  Estrith,  ascended  the  throne  in  1074,  among  the 
legal  innovations  which  he  introduced  was  the  substitution 
of  the  purgatorial  oath  for  all  other  forms  of  defence,  which, 
Saxo  specifically  states,  put  an  end  to  the  wager  of  battle, 
and  opened  the  door  to  great  abuses.8 

Fiercer  tribes  than  these  in  Europe  there  were  none,  and 
their  abrogation  of  the  battle  trial  at  this  early  age  is  an 
inexplicable  anomaly.  It  was  an  exceptional  movement, 
however,  without  results  beyond  their  own  narrow  boun- 
daries. Other  causes  had  to  work  slowly  and  painfully  for 
ages  before  man  could  throw  off  the  bonds  of  ancestral 
prejudice.  One  of  the  most  powerful  of  these  causes  was 
the  gradual  rise  of  the  Tiers-Etat  to  consideration  and 
importance.  The  sturdy  bourgeois,  though  ready  enough 
with  morion  and  pike  to  defend  their  privileges,  were 
usually  addicted  to  a  more  peaceful  mode  of  settling 
private  quarrels.  Devoted  to  the  arts  of  peace,  seeing 
their  interest  in  the  pursuits  of  industry  and  commerce, 
enjo}ing  the  advantage  of  settled  and  permanent  tribunals, 
and  exposed  to  all  the  humanizing  and  civilizing  influences 

1  Quo  even  it  utDani,  abrogata  duellorum  consuetudine,  pleraque  causarum 
judicia  eo  experimenti  genere  constatura  decernerent,  controversiarum  exa- 
men  rectius  ad  arbitrium  divinum  quam  ad  humanam  rixam  religandum 
putantes. — Saxon.  Granimat.  Hist.  Dan.  Lib.  x. 

-  Ipsa  nanque  defendendi  potestas  non  armoruin  non  testium  usu,  sed  sola 
saeramenti  fide  subnixa,  multorum  conatus  votorum  cupiditate  perjurio 
polluit,  sed  et  funditus  singularium  congressionum  usum  evertit.  Posteris 
nanque  susceptas  causarum  controversial  satius  jurejurando  visum  est  ex- 
pedire  quam  ferro. — Ibid.  Lib.  xi. 


144  THE    WAGER    OF    BATTLE. 

of  close  association  in  communities,  they  speedily  acquired 
ideas  of  progress  very  different  from  those  of  the  savage 
feudal  nobles  living  isolated  in  their  fastnesses,  or  of  the 
wretched  serfs  who  crouched  for  protection  around  the 
castles  of  their  masters  and  oppressors.  Accordingly,  the 
desire  to  escape  from  the  necessity  of  purgation  by  battle 
is  almost  coeval  with  the  founding  of  the  first  communes. 
The  earliest  instance  of  the  kind  that  I  have  met  with  is 
contained  in  the  charter  granted  to  Pisa  by  the  Emperor 
Henry  IV.  in  1081,  by  which  he  agrees  that  any  accusa- 
tions which  he  may  bring  against  citizens  can  be  tried 
without  battle  by  the  oaths  of  twelve  compurgators,  except 
when  the  penalties  of  death  or  mutilation  are  involved; 
and  in  questions  concerning  land,  the  duel  is  forbidden 
when  competent  testimony  can  be  procured.1  Limited  as 
these  concessions  may  seem,  they  were  an  immense  inno- 
vation on  the  prejudices  of  the  age,  and  are  important  as 
affording  the  earliest  indication  of  the  direction  which  the 
new  civilization  was  assuming.  Not  long  after,  about  the 
year  1105,  the  citizens  of  Amiens  received  a  charter  from 
their  bishop,  St.  Godfrey,  in  which  the  duel  is  subjected  to 
some  restriction — not  enough  in  itself,  perhaps,  to  effect 
much  reform,  yet  clearly  showing  the  tendency  which  ex- 
isted.3 Perhaps  the  earliest  instance  of  absolute  freedom 
from  the  judicial  combat  occurs  in  a  charter  granted  to  the 
inhabitants  of  Bari  by  Roger,  King  of  Naples,  in  1132.3  In 
that  of  Nieuport,  bestowed  in  1163,  by  Philip  of  Alsace, 

1  Liinig  Cod.  Diplom.  Ital.  I.  2455. — The  liberal  terms  of  this  charter  show 
the  enlightenment  of  the  Emperor,  and  explain  the  fidelity  manifested  for  him 
by  the  imperial  cities  in  his  desperate  struggles  with  his  rebellious  nobles 
and  an  implacable  papacy. 

3  Si  conventio  aliqua  facta  fuerit  ante  duos  vel  plures  scabinos,  de  con- 
ventione  ilia  amplius  non  surget  campus  vel  duellum,  si  scabini  qui  conven- 
tioni  interfuerint,  hoc  testificati  fuerint. — Chart.  Commun.  Ambianens.  c. 
44.     (Migne's  Patrolog.  T.  162,  p.  750). 

3  Ferrum,  cacavum,  pugnam,  aquam,  vobis  non  judicabit  vel  judicari 
faciet.     (Muratori,  Antiq.  Ital.  Dissert.  38.) 


INFLUENCE    OP    COMMERCE.  145 

while  the  ordeal  of  red-hoi  iron  and  pompnrgatorW  <>.-it lis 
are  freely  alluded  to  as  means  of  rebutting  accusal  ions,  t  here 

is  no  reference  whatever  to  the  battle  trial.  showing  that 
it  was  by  that  time  no  longer  in  use.1  Even  in  Scotland, 
partial  exemptions  of  the  same  kind  in  favor  of  towns  are 
found  as  early  as  the  twelfth  century.  A  stranger  could 
not  force  a  burgher  to  fight,  except  on  an  accusation  of 
treachery  or  theft,  while,  if  a  burgher  desired  to  compel  a 
stranger  to  the  duel,  he  was  obliged  to  go  beyond  the  con- 
fines of  the  town.  A  special  privilege  was  granted  to  the 
roj'al  burghs,  for  their  citizens  could  not  be  challenged  by 
the  burghers  of  nobles  or  prelates,  while  they  had  the  right 
to  offer  battle  to  the  latter.3 

The  special  influence  exercised  by  the  practical  spirit  of 
trade  in  rendering  the  duel  obsolete  is  well  illustrated  by 
the  privilege  granted,  in  1127,  by  William  Clito  to  the  mer- 
chants of  St.  Omer,  declaring  that  they  should  be  free  from 
all  appeals  to  single  combat  in  all  the  markets  of  Flanders.3 
In  a  similar  spirit,  when  Frederic  Barbarossa,  in  1173,  was 
desirous  of  attracting  to  the  markets  of  Aix-la-Chapelle 
and  Duisbourg  the  traders  of  Flanders,  in  the  code  which 
he  established  for  the  protection  of  such  as  might  come,  he 
Specially  enacted  that  they  should  enjoy  immunity  from  the 
duel.4  Even  Russia  found  it  advantageous  to  extend  the 
same  exemption  to  foreign  merchants,  and  in  the  treaty 
which  Mstislas  Davidovitch  made  in  1228  with  the  Hanse- 
town  of  Riga,  he  granted  to  the  Germans  who  might  seek 

1  Oudegherst,  Annales  de  Flandre  ed.  Lesbroussart.  T.  II,  note  ad  fin. — 
The  laws  bestowed  by  Philippe  on  the  city  of  Ghent  in  1178  have  no  allu- 
sion to  any  species  of  ordeal,  and  appear  to  rest  altogether  on  ordinary  legal 
processes. — Ibid.  T.  i.  p.  426  sqq. 

2  L.  Burgorum  c.  14,  15.     (Skene.) 

3  In  omni  mercato  Flandrire  si  quis  clamorem  adversus  eos  suscitaverit, 
judicium  scabinorum  de  omni  clamore  sine  duello  subeant ;  ab  duello  vero 
altering  liberi  sint  — (Warnkonig,  Hist,  de  la  Flandre,  II.  411.) 

*  Nemo  mercatorem  de  Flandria  duello  provocabit.   (Ibid.,  II.  426.) 

13 


146  THE    WAGER    OF    BATTLE. 

his  dominions  immunity  from  liability  to  the  red-hot  iron 
ordeal  and  wager  of  battle.1 

Germany  seems  to  have  been  somewhat  later  than  France 
or  Italy  in  the  movement,  yet  her  burghers  evidently  re- 
garded it  with  favor.  In  1219,  the  charter  granted  to  Niirn- 
berg  by  Frederic  II.  expressly  exempts  the  citizens  from 
the  appeal  of  battle  throughout  the  Empire.3  The  statutes 
of  Eisenach,  in  1283,  provide  that  no  duel  shall  be  ad- 
judged in  the  town,  except  in  cases  of  homicide,  and  then 
only  when  the  hand  of  the  murdered  man  shall  be  pro- 
duced in  court  at  the  trial.3  In  1291,  Rodolph  of  Haps- 
burg  issued  a  constitution  declaring  that  the  burghers  of 
the  free  imperial  cities  should  not  be  liable  to  the  duel  out- 
side of  the  limits  of  their  individual  towns,4  and  in  the 
Kayser-Recht  this  privilege  is  extended  by  declaring  the 
burghers  exempt  from  all  challenge  to  combat,  except  in  a 
suit  brought  by  a  fellow-citizen.5 

All  these,  however,  were  special  privileges  for  a  limited 
class  of  men,  and  their  local  regulations  had  no  direct 
bearing  on  general  legislation,  except  in  so  far  as  they 
might  assist  in  softening  the  manners  of  their  generation 
and  aiding  in  the  general  spread  of  civilization.  A  more 
efficient  cause  was  to  be  found  in  the  opposition  of  the 

1  Esneaux,  Hist,  de  Russie,  II.  273  (Du  Boys,  Droit  Criminel  des  Peup. 
Mod.  I.  603). 

2  Item,  nemo  aliquem  civem  loci  illius  duello  impetere  debet  in  toto  Ro- 
mano imperio. — Constit.  Frid.  II.  de  Jur.  Norinib.  §  4  (Goldast.  Constit. 
Imp.  I.  291). 

3  Henke,  Gesch.  des  Deut.  Peinlichen  Rechts  I.  192  (Du  Boys,  op.  cit. 
II.  590). 

4  Nullus  vos  vel  vestrum  aliquem  modo  duellico  vel  per  viam  duelli  extra 
civitatem  citare  possit  vel  debeat  evocare.   (Goldast.  Op.  cit.  I.  314.) 

5  Imperator  eos  immunes  declaravit  a  duello,  .  .  .  ut  non  possint  con- 
veniri  nisi  civibus  in  eadem  civitate  habitantibus,  ubi  vir  ille  moratur  cui 
lis  movetur.— Jur.  Caesar.  P.  iv.  cap.  i.  (Senckenberg.  Corp.  Jur.  German. 
I.  118).  This  portion  of  the  Kayser-Recht  is  probably  therefore  posterior  to 
the  rise  of  the  Hapsburg  dynasty. 


OPPOSITION    OF    THE    CHURCH.  147 

church,  which,  afl  h:is  been  seen,  never  looked  upon  the 
duel  with  favor,  mid  constantly  endeavored  to  discredit  it. 
Hen  the  close  of  the  twelfth  century,  Celestin  III.  pro- 
hibited it  in  general  terms,1  and  lie  farther  pronounced  that 
champions  in  such  contests,  together  with  principals,  were 
guilty  of  homicide,  and  liable  to  all  the  ecclesiastical  penal- 
ties of  that  crime.9  Innocent  III.,  moreover,  took  care  that 
the  great  council  of  Lateran  in  1215  should  confirm  all  the 
previous  prohibitions  of  the  practice.3  How  difficult  it  was 
to  enforce  respect  for  these  precepts,  even  among  church- 
men, has  been  shown  above,  and  the  persistence  of  ecclesias- 
tical belief  in  the  divine  interposition  is  fairly  illustrated 
by  a  case,  related  with  great  triumph  by  monkish  chroni- 
clers, as  late  as  the  fourteenth  century,  where  a  duel  was 
undertaken  by  direction  of  the  Virgin  Mary  herself.  In 
1325,  a  French  Jew  feigned  conversion  to  Christianity  in 
order  to  gratify  his  spleen  by  mutilating  the  images  in  the 
churches,  and  at  length  he  committed  the  sacrilege  of  car- 
rying off  the  holy  wafer  to  aid  in  the  unknown  and  hideous 
rites  of  his  fellows.  The  patience  of  the  Yirgin  being  at 
last  exhausted,  she  appeared  in  a  vision  to  a  certain  smith, 
commanding  him  to  summon  the  unlucky  Israelite  to  the 
field.  A  second  and  a  third  time  was  the  vision  repeated 
without  effect,  till  at  last  the  smith,  on  entering  a  church, 
was  confronted  by  the  Yirgin  in  person,  scolded  for  his 
remissness,  promised  an  easy  victory,  and  forbidden  to 
pass  the  church  door  until  his  duty  should  be  accomplished. 
He  obeyed  and  sought  the  authorities.  The  duel  was 
decreed,  and  the  unhappy  Hebrew,  on  being  brought  into 

1  "  In  eo  casu,  vel  aliis  etiam,  hoc  non  debes  aliquatenus  tolerare"  (Can. 
1,  Extra,  Lib.  v.  Tit.  xxxv.).  The  rubric  of  this  canon  is  even  more  de- 
cided.— "Duella  et  alia;  purgationes  vulgares  prohibitae  sunt,  quia  per  eas 
multoties  condemnatur  absolvendus,  et  Deus  tentari  videtur." 

2  Quod  tales  pugiles  hoinicidae  veri  existunt.  .  .  .  Homicidium  autem, 
tarn  facto  quam  praecepto,  sive  consilio,  aut  defensione,  non  est  dubium  per- 
petrari. — Can.  2,  Extra,  Lib.  v.  Tit.  xv. 

3  Concil.  Lateranens.  IV.  Can.  18. 


148  THE    WAGER    OF    BATTLE. 

the  lists,  yielded  without  a  blow,  falling  on  his  knees,  con- 
fessing his  unpardonable  sins,  and  crying  that  he  could 
not  resist  the  thousands  of  armed  men  who  appeared 
around  his  adversary  with  threatening  weapons.  He  was 
accordingly  promptly  burned,  to  the  great  satisfaction  of 
all  believers.1  Yet  for  all  this,  the  opposition  of  the  church, 
as  authoritatively  expressed  by  successive  pontiffs,  could 
not  but  have  great  influence  in  opening  the  minds  of  men 
to  a  sense  of  the  cruelty  and  injustice  of  the  custom.3 

But  perhaps  the  most  potential  cause  at  work  was  the 
revival  of  the  Roman  jurisprudence,  which  in  the  thirteenth 
century  commenced  to  undermine  all  the  institutions  of 
feudalism.  Its  theory  of  royal  supremacy  was  most  agree- 
able to  sovereigns  whose  authority  over  powerful  vassals 
was  scarcely  more  than  nominal ;  its  perfection  of  equity 
between  man  and  man  could  not  fail  to  render  it  enticing 
to  clear-minded  jurists,  wearied  with  the  complicated  and 
fantastic  privileges  of  ecclesiastical,  feudal,  and  customary 
law.  Thus  recommended,  its  progress  was  rapid.  Monarchs 
lost  no  opportunity  of  inculcating  respect  for  that  which 
served  their  purpose  so  well,  and  the  civil  lawyers,  who 
were  their  most  useful  instruments,  speedily  rose  to  be  a 
power  in  the  state.  Of  course  the  struggle  was  long,  for 
feudalism  had  arisen  from  the  necessities  of  the  age,  and  a 
system  on  which  were  based  all  the  existing  institutions  of 
Europe  could  only  be  attacked  in  detail,  and  could  only  be 
destroyed  when  the  advance  of  civilization  and  the  general 
diffusion  of  enlightenment  had  finally  rendered  it  obsolete. 
The  French  Revolution  was  the  final  battle-field,  and  that 
terrible  upheaval  was  requisite  to  obliterate  a  form  of 
society  whose  existence  had  numbered  nine  hundred  years. 

1  Willelmi  Egmond.  Chron.    (Matthaei  Analect.  IV.  231.) 

3  As  late  as  1492,  the  Synod  of  Schwerin  promulgated  a  canon  prohibiting 

Christian  burial  to  those  who  fell  in  the  duel  or  in  tournaments. — Synod. 

Svverin.  ann.  1492  Can.  xxiv.     (Hartzheim  Concil.  German.  V.  647.) 


EFFORTS    TO    RKSTIIK'T     THE     DU1L.  110 

The  wager  of  battle  waa  not  lon<r  In  experiencing  the 

first  assaults  oft  lu- new  power.  The  earliest  efficient  steps 
towards  its  abolition  were  taken  in  1231  by  the  Emperor 
Frederic  II.  in  hie  Neapolitan  code.  He  pronounces  it  to 
be  iii  no  sense  a  legal  proof,  but  only  a  species  of  divination, 
Incompatible  with  every  notion  of  equity  and  justice,  and 
he  prohibits  it  for  the  future,  except  in  cases  of  murder  and 
treason  where  other  proof  is  unattainable;  and  even  in 
these  it  is  placed  at  the  option  of  the  accuser  alone,  as  if 
to  render  it  a  punishment  and  not  a  trial.1  The  German 
Imperial  code,  known  as  the  Kayser-llecht,  which  was  pro- 
bably compiled  about  the  same  time,  contains  a  similar 
denunciation  of  the  uncertainty  of  the  duel,  but  does  not 
venture  on  a  prohibition,  merely  renouncing  all  responsi- 
bility for  it,  while  recognizing  it  as  a  settled  custom.9  In 
the  portion,  however,  devoted  to  municipal  law,  which  is 
probably  somewhat  later  in  date,  the  prohibition  is  much 
more  stringently  expressed,  manifesting  the  influences  at 
work  ;3  but  even  this  is  contradicted  by  a  passage  almost 
immediately  preceding  it.  How  little  influence  these  wise 
counsels  had,  in  a  state  so  intensely  feudal  and  aristocratic, 
is  exemplified  in  the  Swabian  and  Saxon  codes,  where  the 
duel  plays  so  important  a  part.  Yet  the  desire  to  escape 
it  was  not  altogether  confined  to  the  honest  burghers  of  the 
cities,  for  in  1277,  Rodolph  of  Hapsburg,  even  before  he 
granted  the  immunity  to  the  imperial  towns,  gave  a  charter 
to  the  duchy  of  Styria,  securing  to  the  Styrians  their  privi- 

1  Constit.  Sicular.  Lib.  n.  Tit.  xxxii.  xxxiii. — "  Non  tam  vera  probatio 
quam  quaedam  divinatio  .  .  .  quae  naturae  non  consonans,  a  jure  communi 
deviat,  aequitatis  rationibus  non  consentit." 

9  Cum  viderit  innocentes  in  duello  succubuisse,  et  sontes  contra  in  sua 
iniustitia  nihilominus  victoriam  obtinuisse.  Et  ideo  in  jura  imperii  scrip- 
turn  est,  ubi  duo  ex  more  in  duellum  procedunt,  hoc  non  pertinet  ad  imperium. 
— Jur.  Ca;sar.  P.  n.  c.  70.     (Senckenberg  I.  54.) 

3  Quilibet  sciat  imperatorera  jussisse  ut  nemo  alterum  ad  duellum  provocet. 
.  .  .  Nemo  enim  unquam  fortiores  provocari  vidit,  sed  semper  debilioreK, 
et  fortiores  semper  triumpharunt. — Ibid.  P.  iv.  cap.  19. 

13* 


150  THE    WAGER    OF    BATTLE. 

leges  and  rights,  and  in  this  he  forbade  the  duel  in  all  cases 
where  sufficient  testimony  could  be  otherwise  obtained ; 
while  the  general  tenor  of  the  document  shows  that  this 
was  regarded  as  a  favor.1 

In  1248,  Don  Jayme  I.  of  Aragon,  in  revising  the  fran- 
chises of  Majorca,  prohibited  the  judicial  combat  in  both  civil 
and  criminal  cases.3  Within  fifteen  years  from  this,  Alfonso 
the  Wise  of  Castile  issued  the  code  generally  known  as  Las 
Siete  Partidas.  In  this  he  evidently  desired  to  curb  the 
practice  as  far  as  possible,  stigmatizing  it  as  a  custom  pe- 
culiar to  the  military  class  (por  lid  de  caballeros  6  de 
peones),  and  as  reprehensible  both  as  a  tempting  of  God 
and  as  a  source  of  perpetual  injustice.3  Accordingly,  he 
subjected  it  to  very  important  limitations.  The  wager  of 
battle  could  only  be  granted  by  the  king  himself;*  it  could 
only  take  place  between  gentlemen,5  and  in  personal  actions 
alone  which  savored  of  treachery,  such  as  murder,  blows, 
or  other  dishonor,  inflicted  without  warning  or  by  sur- 
prise. Offences  committed  against  property,  burning, 
forcible  seizure,  and  other  wrongs,  even  without  defiance, 
were  specifically  declared  not  subject  to  its  decision,  the 
body  of  the  plaintiff  being  its  only  recognized  justifica- 
tion.6   Even  in  this  limited  sphere,  the   consent  of  both 

1  Si  inter  Stirienses  qusestionem  contingat  oriri,  duellum  locum  tion 
habeat,  vel  probatio  per  campionera,  ubi  testes  idonei  producentur,  secundum 
quorum  testimonium  quaestio  dirimatur. — Rudolphi  I.  Privileg.  (Ludewig 
Reliq.  MSS.  T.  IV.  p.  260.) 

*2  Du  Cange,  s.  v.  Batalia. 

3  Los  sabios  antiguos  que  ficieron  los  leyes  non  la  tovieron  por  derecha 
prueba  :  ed  esto  por  dos  razones  ;  la  una  porque  muchas  vegadas  acaesce 
que  en  tales  lides  pierde  la  verdat  e  vence  la  mentira  :  la  otra  porque  aquel 
que  ha  voluntad  de  se  aventurar  a  esta  prueba  semeja  que  quiere  tentar  a 
Dios  nuestro  senor. — Partidas,  P.  Ill,  Tit.  xiv.  1.  8. 

4  Ibid.  P.  vii.  Tit.  iii.  1.  2. 
6  Ibid.  P.  vn.  Tit.  iii.  1.  3. 

6  Et  sobre  todo  decimos  que  non  se  puede  facer  riepto  sinon  sobre  cosa  6 
fecho  en  que  caya  traycion  6  aleve  ;  et  por  ende  si  un  fidalgo  a  otro  quemare 
6  derribare  casas,  6  cortare  vinas  6  arboles,  6  forzare  haber  oheridat,  6  ficiere 


SPAIN.  151 

parties  was  requisite,  for  the  appellant  could  prosecute  in 
the  ordinary  Legal  manner,  am  I  the  defendant,  if  challenged 

to  1  >attle,  could  elect  to  have  the  case  tried  1>\  witnesses  or 
inquest,  nor  could  the  king  himself  refuse  aim  the  right  to 

do  so.1  When  to  this  is  added  that  a  preliminary  trial  was 
requisite  to  decide  whether  the  alleged  offence  was  treach- 
erous in  its  character  or  not,  it  will  be  seen  that  the  com  hat 
Mas  hedged  around  with  such  difficulties  as  rendered  its 
presence  on  the  statute  book  scarcely  more  than  an  unmean- 
ing concession  to  popular  prejudice ;  and  if  anything  were 
wanting  to  prove  the  utter  contempt  of  the  legislator  for 
the  decisions  of  the  battle-trial,  it  is  to  be  found  in  the  reg- 
ulation that  if  the  accused  was  killed  on  the  field,  without 
confessing  the  truth  of  the  crime  imputed,  he  was  to  be 
pronounced  innocent,  as  one  who  had  fallen  in  vindicating 
the  truth.3  The  same  desire  to  restrict  the  duel  within  the 
narrowest  possible  limits  is  shown  in  the  rules  concerning 
the  employment  of  champions,  as  has  already  been  seen. 
Although  the  Partidas  as  a  scheme  of  legislation  was  not  as 
successful  as  it  deserved  to  be,  and  although  it  was  most 
unwillingly  received,  still  these  provisions  were  lasting,  and 
produced  the  effect  designed.  The  Ordenamiento  de  Alcala, 
issued  by  Alfonso  XI.  in  1348,  which  remained  in  force 
for  nearly  two  centuries,  repeats  the  restrictions  of  the 
Partidas,  but  in  a  very  cursory  manner,  and  rather  in- 
cidentally than  directly,  showing  that  the  judicial  combat 
was  then  a  matter  of  little  importance,  and  that  the 
ordinances  of  Alfonso  the  Wise  had  become  part  of  the 

otro  mal  que  non  tanga  en  su  cuerpo,  maguer  non  le  haya  ante  desafido,  non 
es  por  ende  alevoso,  nil  puede  reptar  por  ello. — Partidas,  P.  VII.  Tit.  iii. 
1.  3. 

1  Tree  dias  debese  acordarel  reptado  para  escogeruna  de  las  tres  maneras 
que  desuso  dixiemos,  qual  mas  quisiere  porque  se  libre  el  pleyto.  .  .  .  ca  el 
re  nin  su  corte  non  han  de  mandar  lidian  por  riepto. — Ibid.  P.  vn.  Tit.  iii. 
1.  4. 

2  Muera  quito  del  riepto  ;  ca  razon  es  que  sea  quito  quien  defend iendo  la 
verdad  recibio  miierte. — Ibid.  P.  vn.  Tit.  iv.  1.  4. 


152  THE    WAGER    OF    BATTLE. 

national  law,  to  be  received  as  a  matter  of  course.1  In 
fact,  the  jurisprudence  of  Spain  was  derived  so  directly 
from  the  Roman  law  through  the  Wisigothic  code  and  its 
Romance  recension,  the  Fuero  Juzgo,  that  the  wager  of 
battle  could  never  have  become  so  deeply  rooted  in  the 
national  faith  as  among  the  more  purely  barbarian  races. 
It  was  therefore  more  readily  eradicated. 

The  varying  phases  of  the  struggle  between  progress  and 
centralization  on  the  one  side,  and  feudalism  and  chivalry 
on  the  other,  were  exceedingly  well  marked  in  France,  and 
as  the  materials  for  tracing  them  are  abundant,  a  more 
detailed  account  of  the  gradual  reform  may  perhaps  have 
interest,  as  illustrating  the  long  and  painful  strife  which 
has  been  necessary  to  evoke  order  and  civilization  out  of 
the  incongruous  elements  from  which  modern  European 
society  has  sprung.  The  sagacity  of  St.  Louis,  so  rarely 
at  fault  in  the  details  of  civil  administration,  saw  in  the 
duel  not  only  an  unchristian  and  unrighteous  practice,  but 
a  symbol  of  the  disorganizing  feudalism  which  he  so  ener- 
getically labored  to  suppress.  His  temper  led  him  rather 
to  adopt  pacific  measures,  in  sapping  by  the  forms  of  law 
the  foundations  of  the  feudal  power,  than  to  break  it  down 
by  force  of  arms  as  his  predecessors  had  attempted.  The 
centralization  of  the  Roman  polity  might  well  appear  to 
him  and  his  advisers  the  ideal  of  a  well  ordered  state,  and 
the  royal  supremacy  had  by  his  period  advanced  to  a  point 
where  the  gradual  extension  of  the  judicial  prerogatives  of 
the  crown  might  prove  the  surest  mode  of  humbling  in  time 
the  haughty  vassals  who  had  so  often  bearded  the  sovereign. 
No  legal  procedure  was  more  closely  connected  with  feudal- 
ism, or  embodied  its  spirit  more  thoroughly  than  the  wager 
of  battle,  and  Louis  accordingly  did  all  that  lay  in  his 
power  to  abrogate  the  custom.  The  royal  authority  was 
strictly  circumscribed,  however,  and  though,  in  his  cele- 

1  Ordenamiento  de  Alcala,  Tit.  xxxn.  ll.vii. — xi. 


LEGISLATION    OP    ST.    LOUIS.  153 

brated  Ordonnanoe  of  1260,  he  formally  prohibited  the 
battle  trial  In  the  territory  subject  to  his  jurisdiction^ Jhe 

was  obliged  to  admit  that  he  had  00  PJ2X6X  to  control  the 
courts  of  his  barons  beyond  the  domains  of  the  crown.a 
Even  within  this  comparatively  limited  sphere,  we  may  fa  i  rly 
assume  from  some  passages  in  the  Etablissements,  compiled 
about  the  year  12*70,  that  he  wras  unable  to  do  away  entirely 
with  the  practice.  It  is  to  be  found  permitted  in  some 
cases  both  civil  and  criminal,  of  peculiarly  knotty  character, 
admitting  of  no  other  apparent  solution.3  It  seems,  indeed, 
remarkable  that  he  should  have  authorized  it  even  between 
brothers,  on  criminal  accusations,  only  restricting  them  in 
civil  suits  to  fighting  by  champions,4  when  the  German  law 
of  nearly  the  same  period  forbids  the  duel,  like  marriage, 
between  relations  in  the  fifth  degree,  and  states  that  pre- 
viously it  had  been  prohibited  to  those  connected  in  the 
seventh  degree.5 

1  Nous  deffendons  a  tous  les  batailles  par  tout  nostre  demengne,  mes  nous 
n'ostons  mie  les  clains,  les  respons,  les  convenants,  etc.  .  .  .  fors  que  nous 
ostons  les  batailles,  et  en  lieu  des  batailles  nous  meton  prueves  de  tesmoins, 
et  si  n'oston  pas  les  autres  bones  preuves  et  loyaux,  qui  ont  este  en  court 
laye  siques  a  ore. — Isarabert,  I.  284. 

Lauriere  (Tabl.  desOrdonn.  p.  17)  alludes  to  an  edict  to  the  same  purport 
under  date  of  1240,  of  which  I  can  nowhere  else  find  a  trace. 

a  Se  ce  est  en  l'obeissance  le  Roy  ;  et  se  ce  est  hors  l'obeissance  le  Roy, 
gage  de  bataille.  (Etab.  de  St.  Louis,  Liv.  IX.  chap,  xi.,  xxix.,  xxxviii.) 
Beaurnanoir  repeats  it,  a  quarter  of  a  century  later,  in  the  most  precise 
terms,  "  Car  tout  cil  qui  ont  justice  en  la  conte  poent  maintenir  lor  cort,  s'il 
lor  plest,  selonc  l'ancienne  coustume  ;  et  s'il  lor  plest  il  le  poent  tenir  selonc 
l'establissement  le  Roy."  (Cout.  du  Beauv.  cap.  xxxix.  §  21.)  And  again, 
"  Car  quant  li  rois  Lois  les  osta  de  sa  cort  il  ne  les  osta  pas  des  cours  a,  ses 
barons."     (Cap.  lxi.  §  15.) 

3  Liv.  i.  chap,  xxvii.,  xci.,  cxiii.  etc.  This  is  so  entirely  at  variance 
with  the  general  belief,  and  militates  so  strongly  with  the  opening  assertion 
of  the  Etablissements  (Ordonn.  of  1260)  that  I  should  observe  that  in  the 
chapters  referred  to  the  direction  for  the  combat  is  absolute  ;  no  alternative 
is  provided,  and  there  is  no  allusion  to  any  difference  of  practice  prevailing 
in  the  royal  courts  and  in  those  of  the  barons,  such  as  may  be  seen  in  other 
passages.   (Liv.  i.  chap,  xxxviii.,  lxxxi.,  cxi.,  etc.) 

4  Ibid.  Liv.  I.  chap,  clxvii. 

4  Jur.  Provin.  Alamann.  cap.  clxxi.  §§  10,  11,  12. 


154  THE    WAGER    OF    BATTLE. 

Even  this  qualified  reform  provoked  determined  opposi- 
tion. Every  motive  of  pride  and  interest  prompted  resist- 
ance. The  prejudices  of  birth,  the  strength  of  the  feudal 
principle,  the  force  of  chivalric  superstition,  the  pride  of 
self-reliance  gave  keener  edge  to  the  apprehension  of  losing 
an  assured  source  of  revenue.  The  right  of  granting  the 
wager  of  battle  was  one  of  those  appertaining  to  the  hauts- 
justiciers,  and  so  highly  was  it  esteemed  that  paintings  of 
champions  fighting  frequently  adorned  -their  halls  as  em- 
blems of  their  prerogatives ;  Loysel,  indeed,  deduces  from 
it  a  maxim,  "  The  pillorj^,  the  gibbet,  the  iron  collar,  and 
paintings  of  champions  engaged,  are  marks  of  high  juris- 
diction."1 This  right  had  a  considerable  money  value,  for 
the  seigneur  at  whose  court  an  appeal  of  battle  was  tried 
received  from  the  defeated  party  a  fine  of  sixty  livres  if  he 
was  a  gentleman  and  sixty  sous  if  a  roturier,  besides  a 
perquisite  of  the  horses  and  arms  employed,  and  heavy 
mulcts  for  any  delays  which  might  be  asked.2  Nor  was  this 
all,  for  during  the  centuries  of  its  existence  there  had 
grown  and  clustered  around  the  custom  an  immeasurable 
mass  of  rights  and  privileges  which  struggled  lustily  against 
destruction.  Thus  hardly  had  the  ordonnance  of  prohibi- 
tion been  issued  when,  in  1260,  a  knight  named  Mathieu-le- 

1  Pilori,  echelle,  carquant,  et  peintures  de  champions  combattans  sont 
marques  de  haute  justice. — Instit.  Coutum.  Liv.  n.  Tit.  ii.  Regie  47. 

3  Beaumanoir,  op.  cit.  chap.  lxi.  §§  11,  12,  13. 

In  Normandy,  these  advantages  were  enjoyed  by  all  seigneurs  justiciers. 
"  Tuit  chevalier  et  tuit  sergent  ont  en  leurs  terres  leur  justice  de  bataille  en 
cause  citeaine  ;  et  quant  li  champions  sera  vaincuz,  il  auront  LX.  sols  et  I 
denier  de  la  recreandise." — Etab.  de  Normandie  (Ed.  Marnier,  p.  30).  These 
minutely  subdivided  and  parcelled  out  jurisdictions  were  one  of  the  most 
prolific  causes  of  debate  during  the  middle  ages,  not  only  on  account  of  the 
power  and  influence,  but  also  from  the  profits  derived  from  them.  That  the 
privilege  of  decreeing  duels  was  not  the  least  remunerative  of  these  rights  is 
well  manifested  by  the  decision  of  an  inquest  held  during  the  reign  of  Philip 
Augustus  to  determine  the  conflicting  jurisdictions  of  the  ducal  court  of  Nor- 
mandy and  of  the  seigneurs  of  Vernon.  It  will  be  found  quoted  in  full  by 
Beugnot  in  his  notes  to  the  Olim,  T.  I.  p.  969. 


RESISTANCE    OP    FEUDALISM.  155 

Voyer  actually  brought  suit  against  Che  king  for  the  loss 
It  inflicted  upon  him.  He  dolefully  set  forth  that  he  en- 
Joyed  the  privilege  of  guarding  the  lists  iu  all  duds  adjudged 

in  tin1  royal  court  at  Corbon,  for  which  he  was  entitled  to 
receive  a  fee  of  five  sous  in  each  case ;  and,  as  his  occupation 
thus  was  gone,  he  claimed  compensation,  modestly  suggest- 
in  g  that  he  be  allowed  the  same  tax  on  all  inquests  held 
under  the  new  law.1 

But  the  loss  of  money  was  less  important  than  the  cur- 
tailment of  privilege  and  the  threatened  absorption  of 
power  of  which  this  reform  was  the  precursor.  Every  step 
in  advancing  the  influence  of  peaceful  justice,  as  expounded 
by  the  jurists  of  the  royal  courts,  was  a  heavy  blow  to  the 
independence  of  the  feudatories.  They  felt  their  ancestral 
rights  assailed  at  the  weakest  point,  and  they  instinctively 
recognized  that,  as  the  jurisdiction  of  the  ro}*al  bailiffs 
became  extended,  and  as  appeals  to  the  court  of  the  Parle- 
ment  of  Parfs. became  more  frequent,  their  importance  was 
diminished,  and  their  means  of  exercising^  a  petty  tyranny 
over  those  around  them  were  abridged.  Entangled  in  the 
mazes  of  a  code  in  which  the  unwonted  maxims  of  Roman 
law  were  daily  quoted  with  increasing  veneration,  the  im- 
petuous seigneur  found  himself  the  prey  of  those  whom  he 
despised,  and  he  saw  that  subtle  lawj^ers  were  busily  undo- 
ing the  work  at  which  his  ancestors  had  labored  for  cen- 
turies. These  feelings  are  well  portrayed  in  a  song  of  the 
period,  exhumed  not  long  since  by  Le  Roux  de  Lincy. 
Written  apparently  by  one  of  the  sufferers,  it  gives  so 
truthful  a  view  of  the  conservative  ideas  of  the  thirteenth 
century  that  a  translation  of  the.  first  stanza  ma}' not  be 
amiss : — 

1  Les  OHm,  I.  491.  It  is  perhaps  needless  to  add  that  Mathieu's  suit  was 
rejected.  There  are  many  cases  recorded  in  the  Olim  showing  the  questions 
which  arose  and  perplexed  the  lawyers,  and  the  strenuous  efforts  made  by 
the  petty  seigneurs  to  preserve  their  privileges. 


156  THE    WAGER    OF    BATTLE. 

Gent  de  France,  mult  estes  esbahis ! 

Je  di  a  touz  ceus  qui  sont  nez  des  fiez,  etc.1 

Ye  men  of  France,  dismayed  and  sore 

Ye  well  may  be.     In' sooth,  I  swear, 
Gentles,  so  help  me  God,  no  more 

Are  ye  the  freemen  that  ye  were  ! 
Where  is  your  freedom  ?  ye  are  brought 

To  trust  your  rights  to  inquest-law, 
Where  tricks  and  quibbles  set  at  naught 

The  sword  your  fathers  wont  to  draw. 
Land  of  the  Franks ! — no  more  that  name 

Is  thine — a  land  of  slaves  art  thou, 
Of  bondsmen,  wittols,  who  to  shame 

And  wrong  must  bend  submissive  now ! 

Even  legists — de  Fontaines,  whose  admiration  of  the  Di- 
gest led  him  on  all  occasions  to  seek  an  incongruous  alliance 
between  the  customary  and  imperial  law,  and  Beaumanoir, 
who  in  most  things  was  far  in  advance  of  his  age,  and  who 
assisted  so  energetically  in  the  work  of  centralisation — even 
these  enlightened  lawyers  hesitate  to  object  to  the  principles 
involved  in  the  battle  trial,  and  while  disapproving  of  the 
custom,  express  their  views  in  language  which  contrasts 
strongly  with  the  vigorous  denunciations  of  Frederic  II. 
half  a  century  earlier.3 

1  Recueil  de  Chants  Historiques  Francais,  I.  218. — It  is  not  unreasonable 
to  conjecture  that  these  lines  may  have  been  occasioned  by  the  celebrated 
trial  of  Enguerrand  de  Coucy  in  1256.  On  the  plea  of  baronage,  he  demanded 
trial  by  the  Court  of  Peers,  and  claimed  to  defend  himself  by  the  wager  of 
battle.  St.  Louis  proved  that  the  lands  held  by  Enguerrand  were  not 
baronial,  and  resisted  with  the  utmost  firmness  the  pressure  of  the  nobles 
who  made  common  cause  with  the  culprit.  On  the  condemnation  of  de 
Coucy,  the  Count  of  Britanny  bitterly  reproached  the  king  with  the  degrada- 
tion inflicted  on  his  order  by  subjecting  its  members  to  inquests. — Beugnot, 
Olim  I.  954. — Grandes  Chroniques  ann.  1256. 

3  Et  se  li  uns  et  li  autres  est  si  enreues,  qu'il  n'en  demandent  nul  amesure- 
ment  entrer  pueent  par  folie  en  perill  de  gages. — (Conseil,  chap.  xv.  Tit. 
xxvii.) — Car  bataille  n'a  mie  leu  ofr  justise  a  mesure. —  (Ibid.  Tit.  xxvii.)  — 
Mult  a  de  perix  en  plet  qui  est  de  gages  de  bataille,  et  mult  est  grans  mestiers 
c'on  voist  sagement  avant  en  tel  cas. — (Cout.  du  Beauv.  chap.  lxiv.  §  1.) — 


P  II  I  I,  1  I'  1'  K-LE-BEL.  16? 

How  powerful  were  the  influences  thus  brought  (<>  i>o:n- 
against  the  Innovation  is  shown  i».v  the  i:ut  that  when  the 

mild  luit  linn  band  of  St.  Louis  no  Longer  grasped  the 
sceptre,  his  sou  and  sneeessor  could  not  maintain  his 
father's  laws,  and  allowed  himself  to  preside  at  a  Judicial 
duel  about  the  year  1283,  Bcarcely  more  than  twenty  years 

after  the  promulgation  of  the  ordonnance  of  prohibition.1 
The  next  monarch,  Philippe-le-Bel,  was  at  first  guilty  of 
the  same  weakness,  for  when  in  1293  the  Count  of  Armagnae 
accused  Raymond  Bernard  of  Foix  of  treason,  a  duel 
bet  ween  them  was  decreed,  and  they  were  compelled  to  fight 
before  the  King  at  Gisors ;  though  Robert  d'Artois  inter- 
fered after  the  eonibat  had  commenced,  and  induce* I  Philippe 
to  separate  the  antagonists.2  Philippe,  however,  was  too 
astute  not  to  see  that  his  interest  lav  in  humbling  feudalism 
in  all  its  forms;  while  the  rapid  extension  of  the  jurisdic- 
tion of  the  crown,  and  the  limitations  on  the  seignorial 
courts,  so  successfully  invented  and  asserted  by  the  lawyers, 
acting  by  means  of  the  Parlement  through  the  royal 
1  >ail ill's,  gave  him  power  to  carry  his  views  into  effect  such 
as  had  been  enjoyed  by  none  of  his  predecessors.  Able  and 
unscrupulous,  he  took  full  advantage  of  his  opportunities 
iu  every  way.  and  the  wager  of  battle  was  not  long  in  ex- 
periencing the  effect  of  his  encroachments.  Still  he  pro- 
ceeded step  by  step,  and  the  vacillation  of  his  legislation 
shows  how  obstinate  was  the  spirit  with  which  he  had  to 
deal.  In  1296  he  prohibited  the  judicial  duel  in  time  of 
war,3  and  in  1303  he  was  obliged  to  repeat  the  prohibition.4 

Car  ce  n'est  pas  coze  selonc  Diu  de  soufrir  gages  en  petite  querele  de  meubles 
ou  d'eritages ;  mais  coustume  les  suefre  es  vilains  cas  de  crieme. — Ibid, 
chap.  vi.  §  31. • 

1  Beaumanoir,  op.  cit.  chap.  Ixi.  §  63. 

2  Grandes  Chroniques,  T.  IV.  p.  104. 

3  Quod  durante  guerra  regis,  inter  aliquos  gagia  duelli  nullatenus  admit- 
tantur,  sed  quilibet  in  curiis  regis  et  subditorum  suorum  jus  suum  via  ordi- 
naria  prosequatur. — Isambert,  II.  702. 

4  Ibid.  II.  806. 

14 


158  THE    WAGER    OF    BATTLE. 

It  was  probably  not  long  after  this  that  he  interdicted  the 
duel  wholly1 — possibly  impelled  thereto  by  a  case  occurring 
in  1303,  in  which  he  is  described  as  forced  to  grant  the 
combat  between  two  nobles,  on  an  accusation  of  murder, 
very  greatly  against  his  wishes,  and  in  spite  of  all  his 
efforts  to  dissuade  the  appellant.3 

In  thus  abrogating  the  wager  of  battle,  Philippe-le-Bel 
was  in  advance  of  his  age.  Before  three  years  were  over 
he  was  forced  to  abandon  the  position  he  had  assumed; 
and  though  he  gave  as  a  reason  for  the  restoration  of  the 
duel  that  its  absence  had  proved  a  fruitful  source  of  en- 
couragement for  crime  and  villany,3  yet  at  the  same  time 
he  took  care  to  place  on  record  the  assertion  of  his  own 
conviction  that  it  was  worthless  as  a  means  of  seeking 
justice.4    In  thus  legalizing  it  by  the  Ordonnance  of  1306, 

1  I  have  not  been  able  to  find  this  Ordonnance.  Lauriere  alludes  to  it 
(Tabl.  des  Ordonn.  p.  59),  but  the  passage  of  Du  Cange  which  he  cites  refers 
only  to  a  prohibition  of  tournaments.  The  collection  of  Isambert  contains 
nothing  of  the  kind,  but  that  some  legislation  of  this  nature  actually  oc- 
curred is  evident  from  the  preamble  to  the  Ordonnance  of  1306 — "  Savoir 
faisons  que  comme  ca  en  arriere,  pour  le  commun  prouffit  de  nostre  roy- 
aume,  nous  eussions  deffendu  generaument  a  tous  noz  subgez  toutes  manieres 
de  guerres  et  tous  gaiges  de  batailles,  etc."  It  is  worthy  of  note  that  these 
ordonnances  of  Philippe  were  no  longer  confined  to  the  domain  of  the  crown, 
but  purported  to  regulate  the  customs  of  the  whole  kingdom. 

2  Willelmi  Egmond.  Chron.  (Matthaei  Analect.  IV.  135-7.) 

3  Dont  pluseurs  malfaicteurs  se  sont  avancez  par  la  force  de  leurs  corps  et 
faulx  engins  a  faire  homicides,  traysons  et  tous  autres  malcfices,  griefz  et 
excez,  pource  que  quant  ilz  les  avoient  fais  couvertement  et  en  repost,  ilz  ne 
povoient  estre  convaincuz  par  aucuns  tesmoings  dont  par  ainsi  le  malefice  se 
tenoit. — Ordonnance  de  1306   (Ed.  Crapelet,  p.  2). 

4  Car  entre  tous  les  perilz  qui  sont,  est  celui  que  on  doit  plus  craindre  et 
doubter,  dont  maint  noble  s'est  trouve  deceu  ayant  bon  droit  ou  non,  par 
tropconfier  en  leurs  engins  et  en  leurs  forces  ou  par  leurs  ire?  oultrecuidees. 
— Ibid.  p.  34.  A  few  lines  further  on,  however,  the  Ordonnance  makes  a  con- 
cession to  the  popular  superstition  of  the  time  in  expressing  a  conviction  that 
those  who  address  themselves  to  the  combat  simply  to  obtain  justice  may  ex- 
pect a  special  interposition  of  Providence  in  their  favor.  "  Et  se  1'  interesse, 
sans  orgueil  ne  maltalent,  pour  son  bon  droit  seulement,  requiert  bataille,  ne 
doit  doubter  engin  ne  force,  car  le  vray  juge  sera  pour  luy. " 


PHI  LIPPE-LE-BEL.  159 

however,  he  by  no  mean*  replaced  ii  on  its  former  footing. 
It  was  restricted  to  criminal  eases  involving  the  death 
penalty,  excepting  theft,  and  it  was  only  permitted  \x\wu 
the  crime  was  notorious,  the  guilt  of  the  accused  probable, 
and  no  other  evidence  attainable.1  The  ceremonies  pre- 
sc Bribed,  moreover,  were  fearfully  expensive,  and  put  it  out 
of  the  reach  of  all  except  the  wealthiest  pleaders.  As  the 
Ordonnance,  which  is  very  carefully  drawn,  only  refers  to 
appeals  made  by  the  prosecutor,  it  may  fairly  be  assumed 
that  the  defendant  could  merely  accept  the  challenge  and 
had  no  right  to  offer  it. 

Even  with  these  limitations,  Philippe  was  not  disposed 
t<>  sanction  the  practice  within  the  domains  of  the  crown, 
for,  the  next  year  (1301),  we  find  him  commanding  the 
seneschal  of  Toulouse  to  allow  no  duel  to  be  adjudged  in 
his  court,  but  to  send  all  cases  in  which  the,  combat  might 
arise  to  the  Parlement  of  Paris  for  decision.3  This  was 
equivalent  to  a  formal  prohibition.  During  the  whole  of 
the  period  under  consideration,  numerous  causes  came  before 
the  Parlement  concerning  challenges  to  battle,  on  appeals 
from  various  jurisdictions  throughout  the  country,  and  it 
is  interesting  to  observe  how  uniformly  some  valid  reason 
was  found  for  its  refusal.  In  the  public  register  of  deci- 
sions, extending  from  1254  to  1318,  no  single  instance  of 
its  permission  is  to  be  found.3     The  civil  lawyers  compos- 

1  Ordonnance  de  1306,  cap.  i.  2  Isambert,  II.  850. 

3  See  Les  OWm,  passt?n.  Two  judgments  of  the  Parlement  in  1309  show  the 
observance  of  the  Ordonnance  of  1306,  for,  while  admitting  that  the  duel 
could  take  place,  the  cases  are  settled  by  inquest,  as  capable  of  proof  by  in- 
vestigation. In  another  instance,  however,  the  appellant  is  fined  at  the 
pleasure  of  the  king,  for  challenging  his  opponent  without  due  grounds. 
(Olim,  III.  381-7.)  Considerable  ingenuity  was  manifested  by  the  Parle- 
ment in  thus  uniformly  finding  some  sufficient  excuse  for  refusing  the  duel 
in  the  vast  variety  of  cases  brought  before  it.  This  is  sometimes  effected 
by  denying  the  jurisdiction  of  the  court  which  had  granted  it,  and  sometimes 
for  other  reasons  more  or  less  frivolous,  the  evident  intention  discernible  in 
all  the  arrets  being  to  restrict  the  custom  within  limits  so  narrow  as  to 
render  it  practically  a  nullity. 


1G0  •       THE    WAGER     OF    BATTLE. 

ing  that  powerful  body  knew  too  well  the  work  for  which 
they  were  destined. 

In  spite  of  these  efforts,  the  progress  of  reform  was 
slow.  On  the  breaking  out  afresh  of  the  perennial  contest 
with  Flanders,  Philippe  found  himself,  in  1314,  obliged  to 
repeat  his  order  of  1296,  forbidding  all  judicial  combats 
during  the  war,  and  holding  suspended  such  as  were  in  pro- 
gress.1 As  these  duels  could  have  little  real  importance 
in  crippling  his  military  resources,  it  is  evident  that  he 
seized  such  occasions  to  accomplish  under  the  war  power 
what  his  peaceful  prerogative  was  unable  to  effect,  and  it 
is  a  striking  manifestation  of  his  zeal  in  the  cause,  that  he 
could  turn  aside  to  give  attention  to  it  amid  the  preoccu- 
pations of  the  exhausting  struggle  with  the  Flemings. 
Yet  how  little  impression  he  made,  and  how  instinctively 
the  popular  mind  still  turned  to  the  battle  ordeal,  as  the 
surest  resource  in  all  cases  of  doubt,  is  well"  illustrated  by 
a  passage  in  a  rhyming  chronicle  of  the  day.  When  the 
close  of  Philippe's  rong  and  prosperous  reign  was  dark- 
ened by  the  terrible  scandal  of  his  three  daughters-in-law, 
and  two  of  them  were  convicted  of  adultery,  Godefroy  de 
Paris  makes  the  third,  Jeanne,  wife  of  Philippe-le-Long, 
offer  at  once  to  prove  her  innocence  by  the  combat : — 

Grentil  roy,je  vous  requier,  sire, 
Que  vous  m'oyez  en  deffendant. 
Se  nul  ou  nule  demandant 
Me  vait  choss  de  mauvestie, 
Mon  cuer  sens  si  pur,  si  haitie, 
Que  bonement  me  deffendrai, 
Ou  tel  champion  baillerai, 
Qui  bien  saura  mon  droit  deffendre, 
S'il  vous  plest  a  mon  gage  prendre.2 

The  iron  hand  of  Philippe  was  no  sooner  withdrawn 
than  the  nobles  made  desperate  efforts  to  throw  off  the 

1  Isambert,  III.  40. 

2  Chronique  Metrique,  1.  6375. 


REACTION    UNHI'i:     I.  oil  IS    X.  1  (',  1 

yoke  which  he  had  so  skilfully  and  relentlessly  imposed 
on  them.  His  son,  Louis-K -Hut  in,  not  yet  firmly  seated 
on  the  throne,  was  constrained  to  yield  a  portion  of  the 
aewly-aoquired  prerogative.  The  nobles  of  Burgundy,  for 
Instance,  in  their  formal  list  of  grievances,  demanded  the 
restoration  of  the  wager  of  battle  as  a  right  of  the  accused 
in  criminal  cases,  and  Louis  was  obliged  to  promise  that 
they  should  enjoy  it  according  to  ancient  custom.1  Those 
of  Amiens  and  Vermandois  were  equally  clamorous,  and 
for  their  benefit  he  re-enacted  the  ordonnance  of  1306,  per- 
mitting the  duel  in  criminal  prosecutions,  where  other 
evidence  was  deficient,  with  an  important  extension  autho- 
rizing its  application  to  cases  of  theft,  in  opposition  to 
previous  usage.9  The  nobles  of  Champagne  made  the 
same  demand,  but  Louis,  by  right  of  his  mother,  Jeanne 
de  Champagne,  was  Count  of  Champagne,  and  his  autho- 
rity was  less  open  to  dispute.'  He  did  not  venture  on  a 
decided  refusal,  but  an  evasive  answer,  which  was  tanta- 
mount to  a  denial  of  the  request,3  showed  that  his  previous 
concessions  were  extorted,  not  willingly  granted.  Not 
content  with  this,  the  Champenois  repeated  their  demand, 
and  received  the  dry  response,  that  the  existing  edicts  on 
the  subject  must  be  observed.4 

The  threatened  disturbances  were  avoided,  and  during 
the  succeeding  years  the  centralization  of  jurisdiction  in 
the  royal  courts  made  rapid  progress.  It  is  a  striking  evi- 
dence of  the  successful  working  of  the  plans  of  St.  Louis 
and  Philippe-le-Bel  that  several  ordonnances  and  charters 
granted  by  Philippe-le-Long  in  1318  and  1319,  while  pro- 

1  Et  quant  au  gage  de  bataille,  nous  voullons  que  il  en  usent,  si  comnie 
Ten  fesoit  anciennement. — Ordonn.  Avril  1315,  cap.  1.    (Isambert,  III.  62.) 

2  Nous  voullons  et  octroions  que  en  cas  de  murtre,  de  larrecin,  de  rapt,  de 
trahison  et  de  roberie,  gage  de  bataille  soit  ouvert,  se  les  cas  ne  pouvoient 
estre  prouvez  par  tesmoings  — Ordonn.  15  Mai  1315.     (Isambert  III.  74.) 

3  Ordonn.  Mai  1315,  P.  I.  cbap.  13.     (Isambert  III.  90.) 

4  Ibid.  P.  it.  chap.  8.     (Isambert  III.  95.) 

14* 


162  THE     WAGER    OF     BATTLE. 

mising  reforms  in  the  procedures  of  the  bailiffs  and  senes- 
chnls.  and  in  the  manner  of  holding  inquests,  are  wholly 
silent  on  the  subject  of  the  duel,  affording  a  fair  inference 
that  complaints  on  that  score  were  no  longer  made.1  Phi- 
lippe of  Yalois  was  especially  energetic  in  maintaining  the 
royal  jurisdiction,  and  when  in  1330  he  was  obliged  to  re- 
strict the  abusive  use  of  appeals  from  the  local  courts  to  the 
Parlement,3  it  is  evident  that  the  question  of  granting  or 
withholding  the  wager  of  battle  had  become  practically  a 
prerogative  of  the  crown.  That  the  challenging  of  witnesses 
must  ere  long  have  fallen  into  desuetude  is  shown  by  an 
edict  of  Charles  VI.,  issued  in  1396,  by  which  he  ordered 
that  the  testimony  of  women  should  be  received  in  evidence 
in  all  the  courts  throughout  his  kingdom.3 

Though  the  duel  was  thus  deprived,  in  France,  of  its 
importance  as  an  ordinary  legal  procedure,  yet  it  was  by 
no  means  extinguished,  nor  had  it  lost  its  hold  upon  the 
confidence  of  the  people.  An  instructive  illustration  of 
this  is  afforded  by  the  well-knowTn  story  of  the  Dog  of 
Montargis.  Though  the  learned  Bullet4  has  demonstrated 
the  fabulous  nature  of  this  legend,  and  has  traced  its  pa- 
ternity up  to  the  Carlovingian  romances,  still  the  fact  is 
indubitable  that  it  was  long  believed  to  have  occurred  in 
13  tl,  under  the  reign  of  Charles-le-Sage,  and  that  authors 
nearly  contemporary  with  that  period  recount  the  combat 
of  the  dog  and  the  knight  as  an  unquestionable  fact,  ad- 
miring greatly  the  sagacity  of  the  animal,  and  regarding 
as  a  matter  of  course  both  the  extraordinary  judicial  pro- 
ceedings and  the  righteous  judgment  of  God  which  gave 
the  victory  to  the  greyhound. 

In  1386,  the  Parlement  of  Paris  was  occupied  with  a 
subtle  discussion  as  to  whether  -the  accused  was  obliged, 
in  cases  where  battle  was  gaged,  to  give  the  lie  to  the 

1  Isambert,  III.  196-221. 

2  Ordonn.  9  Mai  1330  (Isambert,  IV.  369). 

3  Neron,  Recueil  d'Edits,  I.  16. 

4  Dissertations  sur  la  Mythologie  Frnncaise. 


I  I    .1  \  c(i  r  |  s    i,  |    (i  it  i  s.  103 

appellant,  under  pain  <>f  being  considered  <«>  uuuAjm  the 
crime  charged,  and  itfjras  decided   that  the  He  was  net 

eeeential.1  The  same  year  occurml  the  celebrated  duel 
between  the  chevalier  de  Carronges  and  Jacques  le  (JHs, 
so  picturesquely  described  by  Froissart,  to  witness  which 
the  King  shortened  i  campaign,  and  in  which  the  appellant 
was  seconded  by  Walofan,  Count  of  St.  Pol,  son-in-law  of 
tin'  Black  Prince.  Nothing  can  well  be  more  impressive 
than  the  scene  presented  by  the  chronicler.  The  cruelly 
Wronged  Dame  de  Carrouges,  clothed  in  black,  is  mounted 
on  a  sable  scaffold,  watching  the  varying  chances  of  the 
unequal  combat  between  her  husband,  weakened  by  disease, 
and  his  vigorous  adversary;  with  the  fearful  certainty  that, 
if  might  alone  prevail,  he  must  die  a  shameful  death  and 
she  be  consigned  to  the  stake.  Hope  grows  faint  and 
fainter;  a  grievous  wound  seems  to  place  Carronges  at  the 
mercy  of  his  adversary,  until  at  the  last  moment,  when  all 
appeared  lost,  she  sees  the  avenger  drive  his  sword  through 
the  body  of  his  prostrate  enemy,  vindicating  at  once  his 
wife's  honor  and  his  own  good  cause.8  Froissart,  however, 
was  rather  an  artist  than  an  historian ;  he  would  not  risk 
the  effect  of  his  picture  by  too  rigid  an  adherence  to  facts, 
and  he  omits  to  mention,  what  is  told  by  the  cooler  Juvenal 
des  Ursins,  that  Le  Gris  was  subsequently  proved  innocent 
by  the  death-bed  confession  of  the  real  offender.8  To  make 
the  tragedy  complete,  the  Anonyme  de  S.  Denis  adds  that 
the  miserable  Dame  de  Carrouges,  overwhelmed  with  re- 
morse at  having  unwittingly  caused  the  disgrace  and  death 
of  an  innocent  man,  ended  her  days  in  a  convent.*  So 
striking  a  proof  of  the  injustice  of  the  battle  ordeal  is  said 
by  some  writers  to  have  caused  the  abandonment  of  the 
practice ;  but  this,  as  will  be  seen,  is  an  error,  though  no 

1  De  Lauriere,  note  on  Loysel,  Instit.  Coutum.  Lib.  vi.  Tit.  i.  Regie  22. 
a  Froissart,  Liv.  in.  chap.  xlix.   (Ed.  Buchon,  1840.) 

3  Hist,  de  Charles  VI.  ann.  1386. 

4  Hist,  de  Charles  VI.  Liv.  vi.  chap.  ix. 


1G4  THE    WAGER    OF    BATTLE. 

further  trace  of  the  combat  as  a  judicial  procedure  is  to  be 
found  on  the  registers  of  the  Parlenlent  of  Paris.1 

In  1409,  the  battle  trial  was  materially  limited  by  an  or- 
donnance  of  Charles  VI.  prohibiting  its  employment  except 
when  specially  granted  by  the  King  or  the  Parlement  ;3 
and  though  the  latter  body  may  never  have  exercised  the 
privilege  thus  conferred  upon  it,  the  King  occasionally  did, 
as  we  find  him  during  the  same  year  presiding  at  a  judicial 
duel  between  Guillaume  Bariller,  a  Breton  knight,  and  John 
Carrington,  an  Englishman.3  The  English  occupation  of 
France,  under  Henry  V.  and  the  Regent  Bedford,  revived 
the  practice,  and  removed  for  a  time  the  obstacles  to  its 
employment.  Nicholas  Upton,  writing  in  the  middle  of 
the  fifteenth  century,  repeatedly  alludes  to  the  numerous 
cases  in  which  he  assisted  as  officer  of  the  Earl  of  Salis- 
bury, Lieutenant  of  the  King  of  England;  and  in  his 
chapters  devoted  to  defining  the  different  species  of  duel, 
he  betrays  a  singular  confusion  between  the  modern  ideas 
of  reparation  of  honor  and  the  original  object  of  judicial 
investigation,  thus  fairly  illustrating  the  transitional  cha- 
racter of  the  period.4 

It  was  about  this  time  that  Philippe-le-Bon,  Duke  of 
Burgundy,  formally  abolished  the  wager  of  battle,  as  far 
as  lay  in  his  power,  throughout  the  extensive  dominions  of 
which  he  was  sovereign,  and  in  the  Coutumier  of  Bur- 
gundy, as  revised  by  him  in  1459,  there  is  no  trace  of  it  to 
be  found.  The  code  in  force  in  Britanny  until  1539  per- 
mitted it  in  cases  of  treason,  theft,  and  perjury, — the  latter, 
as  usual,  extending  it  over  a  considerable  range  of  civil 

1  Buchon,  Notes  to  Froissart,  II.  537. 

2  Que  jamais  nuls  ne  fussent  receus  au  royaume  de  France  a  faire  gages 
de  bataille  ou  faict  d'armes,  sin  on  qu'il  y  eust  gage  juge  par  le  roy,  ou  la 
cour  de  parlement. — Juvenal  des  Ursins,  ann.  1409. 

3  Monstrelet,  Liv.  i.  chap.  lv. 

4  Nic.  Uptoni  de  Militari  Officio  Lib.  II.  cap.  iii.  iv.  (p.  72-73). 


TIIE     PIPTKF.NTIF     CENTURY.  1  65 

actions.1     In  Normandy,  the  legal  existence  of  the  Judicial 

duel  was  lYrii  MN  prolonged,  for  it  was  not  until  the 
revision  of  the  eout under  in  15S.J,  under  Henry  III.,  that, 
the  privilege  of  deciding  in  this  way  numerous  eases,  both 
civil  and  eriniinal,  was  formally  abolished.3  Still  it  may 
be  assumed  that  praetieally  the  eustom  had  long  been  ob- 
solete, though  the  tardy  process  of  the  revision  of  the  local 
customs  allowed  it  to  remain  upon  the  statute-book  to  so 
late  a  date.  The  fierce  mountaineers  of  remote  Beam  clung 
to  it  more  obstinately,  and  in  the  last  revision  of  their 
code,  in  1552,  it  retains  its  place  as  a  legitimate  means  of 
proof,  in  default  of  other  testimony,  with  a  heavy  penalty 
on  .the  party  who  did  not  appear  upon  the  field  at  the 
appointed  time.3 

During  this  long  period,  examples  are  to  be  found  which 
show  that  although  the  combat  was  falling  into  disuse,  it 
was  still  a  legal  procedure,  which,  in  certain  cases,  could 
be  claimed  as  a  right,  or  which  could  be  decreed  and  en- 
forced by  competent  judicial  authority.  In  1455,  the  tri- 
bunals at  Valenciennes  ordered  the  duel  between  two 
bourgeois,  of  whom  one  had  appealed  the  other  for  the 
murder  of  a  kinsman.  Neither  party  desired  the  battle, 
but  the  municipal  government  insisted  upon  it,  and  fur- 
nished them  with  instructors  to  teach  the  use  of  the  staff 
and  buckler,  allowed  as  arms.  The  Count  de  Charolois, 
Charles-le-Temeraire,  endeavored  to  prevent  the  useless 
cruelty,  but  the  city  held  any  interference  as  an  infringe- 
ment of  its  chartered  rights  ;  and,  after  long  negotiations, 
Philippe-le-Bon,  the  suzerain,  authorized  the  combat,  and 
was  present  at  it,  when  the  appellant  literally  tore  out  the 

1  Tres  Ancienne  Cout.  de  Bretagne,  chap.  132,  134  (Bourdot  de  Riche- 
bourg). 

3  Ancienne  Cout.  de  Normandie,  chap.  53,  68,  70,  71,  73  etc.  (Bourdot 
de  Richebourg). 

3  Fors  et  Cost,  de  Beam,  Rubr.  de  Batalha  (Bourdot  de  Richebourg,  IV. 
1093). 


166  TIFE    WAGER    OF    BATTLE. 

heart  of  his  antagonist.1  Such  incidents  among  roturiers, 
however,  were  rare.  More  frequently  some  fiery  gentleman 
claimed  the  right  of  vindicating  his  quarrel  at  the  risk  of 
his  life.  Thus,  in  1482,  shortly  after  the  battle  of  Nancy 
had  reinstated  Rene,  Duke  of  Lorraine,  on  the  ruins  of 
the  second  house  of  Burgundy,  two  gentlemen  of  the  vic- 
tor's court,  quarrelling  over  the  spoils  of  the  battle-field, 
demanded  the  champ-cloh ;  it  was  duly  granted,  and  on 
the  appointed  day  the  appellant  was  missing,  to  the  great 
discomfiture  and  no  little  loss  of  his  bail.3  When  Charles 
d'Armagnac,  in  1484,  complained  to  the  States  General 
of  the  inhuman  destruction  of  his  family,  committed  by 
order  of  Louis  XL,  the  Sieur  de  Castelnau,  whom* he 
accused  of  having  poisoned  his  mother,  the  Countess 
d'Armagnac,  appeared  before  the  assembly,  and  his  advocate 
denying  the  charge,  presented  his  offer  to  prove  his  inno- 
cence by  single  combat.3  In  1518,  Henry  II.  of  Navarre 
ordered  a  judicial  duel  at  Pau  between  two  contestants,  of 
whom  the  appellant  made  default ;  the  defendant  was  ac- 
cordingly pronounced  innocent,  and  was  empowered  to 
drag  through  all  cities,  villages,  and  other  places  through 
which  he  might  pass,  the  escutcheon  and  effigy  of  his  ad- 
versary, who  was  further  punished  by  the  prohibition 
thenceforth  to  wear  arms  or  knightly  bearings.4  In  1538, 
Francis  I.  granted  the  combat  between  Jean  du  Plessis 

1  Mathieu  de  Coussy,  chap.  cxii. 

3  D.  Calmet,  Hist,  de  Lorraine.  By  the  old  German  law,  the  hail  of  a 
defaulting  combatant  was  condemned  to  lose  a  hand,  which,  however,  he 
had  the  privilege  of  redeeming  at  its  legal  value  (Jur.  Provin.  Alaman.  cap. 
ccclxxxvi.  §  32 — Ed.  Schilter.),  or,  according  to  another  text,  he  was  liable 
to  the  punishment  incurred  by  his  principal  if  convicted.  (Ibid.  cap.  clxxiii. 
§  13— Ed.  Senckenberg.) 

3  Jehan  Masselin,  Journal  des  Etats  de  Tours,  p.  320. 

.  V4i.rchives  de  Pau,  apud  Mazure  et  Hatoulet,  Fors  de  Beam,  p.  130. 
There  may  have  been  something  exceptional  in  this  case,  since  the  punish- 
ment was  so  much  more  severe  than  the  legal  fine  of  16  sous  quoted  above. 
(Fors  de  Morlaas,  Bubr.  IV.) 


^ 


THE  SIXTKKNTH  CENTURY.  167 

and  Gauticr  de  Dintcvillc,  which  would  appear  to  have 
been  essentially  a  judicial  proceeding,  since  the  defendant 

not  appearing  at  the  appointed  time,  was  condemned  to 
death  by  sentence  of  the  high  council,  Feb.  20,  1538.*  The 
duel  thus  was  evidently  still  a  matter  of  law,  Which  vindi- 
cated its  majesty  by  punishing  the  unlucky  contestant 
who  shrank  from  the  arbitrament  of  the  sword. 

Allusion  has  already  been  made  to  the  celebrated  com- 
bat between  Chastaigneraye  and  Jarnac,  in  154 T,  wherein 
the  death  of  the  former,  a  favorite  of  Henry  II.,  led  the 
monarch  to  take  a  solemn  oath  never  to  authorize  another 
judicial  duel.  Two  years  later,  two  young  nobles  of  his 
court,  Jacques  de  Fontaine,  Sieur  de  Fendilles,  and  Claude 
des  Guerres,  Baron  de  Yienne-le-Chatel,  desired  to  settle 
in  this  manner  a  disgusting  accusation  brought  against  the 
latter  by  the  former.  The  king  being  unable  to  grant 
the  appeal,  arranged  the  matter  by  allowing  Robert  de  la 
Marck,  Marshal  of  France  and  sovereign  prince  of  Sedan, 
to  permit  it  in  the  territory  of  which  he  was  suzerain. 
Fendilles  was  so  sure  of  success  that  he  refused  to  enter 
the  lists  until  a  gallows  was  erected  and  a  stake  lighted, 
where  his  adversary  after  defeat  was  to  be  gibbeted  and 
burned.  Their  only  weapons  were  broadswords,  and  at 
the  first  pass  Fendilles  inflicted  on  his  opponent  a  fearful 
gash  in  the  thigh. .  Des  Guerres,  seeing  that  loss  of  blood 
would  soon  reduce  him  to  extremity,  closed  with  his  an- 
tagonist, and  being  a  skilful  wrestler,  speedily  threw  him. 
Reduced  to  his  natural  weapons,  he  could  only  inflict 
blows  with  the  fist,  which  failing  strength  rendered  less 
and  less  effective,  when  a  scaffold  crowded  with  ladies  and 
gentlemen  gave  way,  throwing  down  the  spectators  in  a 
shrieking  mass.  Taking  advantage  of  the  confusion,  the 
friends  of  des  Guerres  violated  the  law  which  imposed  ab- 
solute silence  and  neutrality  on  all,  and  called  to  him  to 

1  D.  Calmet,  Hist  de  Lorraine 


1G8  THE    WAGER    OP    BATTLE. 

blind  and  suffocate  his  adversary  with  sand.  Pes  Guerres 
promptly  took  the  hint,  and  Fendilles  succumbed  to  this 
unknightly  weapon.  Whether  he  formally  yielded  or  not 
was  disputed.  Des  Guerres  claimed  that  he  should  un- 
dergo the  punishment  of  the  gallows  and  stake  prepared  for 
himself,  but  de  la  Marck  interfered,  and  the  combatants  were 
both  suffered  to  retire  in  peace.1  This  is  the  last  recorded 
instance  of  the  wager  of  battle  in  France.  The  custom 
appears  never  to  have  been  formally  abolished,  and  so  little 
did  it  represent  the  thoughts  and  feelings  of  the  age  which 
witnessed  the  Reformation,  that  when  in  156G,  Charles  IX. 
issued  an  edict  prohibiting  duels,  no  allusion  was  made  to 
the  judicial  combat.  The  encounters  which  he  sought  to 
prevent  were  solely  those  which  arose  from  points  of  honor 
between  gentlemen,  and  the  offended  party  was  ordered 
not  to  appeal  to  the  courts,  but  to  lay  his  case  before  the 
Marshals  of  France,  or  the  governor  of  his  province.3  The 
custom  had  died  a  natural  death.  No  ordonnance  was 
necessary  to  abrogate  it ;  and,  seemingly  from  forgetful- 
ness,  the  crown  appears  never  to  have  been  divested  of  the 
right  to  adjudge  the  wager  of  battle. 

In  Hungary,  it  was  not  until  1492  that  any  attempt  was 
made  to  restrict  the  judicial  duel.  In  that  year,  Yladislas 
II.  prohibited  it  in  cases  where  direct  testimony  was  pro- 
curable ;  where  such  evidence  was  unattainable,  he  still 
permitted  it,  both  in  civil  and  criminal  matters,  and  he 
alleged  as  his  reason  for  the  restriction,  the  frauds  occa- 
sioned by  the  almost  universal  employment  of  champions. 
The  terms  of  the  decree  show  that  previously  its  use  was 
general,  though  he  declared  it  to  be  a  custom  unknown 

1  Brantome,  Discours  sur  les  Duels.  An  account  of  this  duel,  published 
at  Sedan,  in  1620,  represents  it  as  resulting  less  honorably  to  Fendilles.  He 
is  there  asserted  to  have  formally  submitted,  and  to  have  been  contempt- 
uously tossed  out  of  the  lists  like  a  sack  of  corn,  des  Guerres  marching  off 
triumphantly,  escorted  with  trumpets. 

2  Foutanon,  I.  C65. 


HUNGARY  —  ITALY  —  RUSSIA.  169 

elsewhere.1  Even  the  precocious  civilization  of  Itaty,  which 
usumIIv  preferred  astuteness  to  force,  could  not  shake  <>ir 
the  traditions  of  the  Lombard  law  until  the  sixteenth  een- 
turv.  In  1505,  Julius  II.  forbade  the  duel  under  the  seve- 
rest penalties,  both  civil  and  ecclesiastical,  in  a  decretal, 
of  whieh  the  expressions  allow  the  fair  conclusion  that 
until  then  the  wager  of  battle  was  still  in  some  cases  em- 
ployed as  a  legal  process  within  the  confines  of  the  pontifical 
states." 

In  Russia,  under  the  code  known  as  the  Oulogenie'  Za- 
konof,  promulgated  in  1498,  any  culprit,  after  his  accuser's 
testimony  was  in,  could  claim  the  duel ;  and  as  both  parties 
went  to  the  field  accompanied  by  all  the  friends  they  could 
muster,  the  result  was  not  infrequently  a  bloody  skirmish. 
These  abuses  were  put  an  end  to  by  the  Soudebtnick,  is- 
sued in  1550,  and  the  duel  was  regulated  after  a  more 
decent  fashion,  but  it  continued  to  flourish  legally,  until  it 
was  finally  abrogated  in  1649  by  the  Czar  Alexis  Mikhailo- 
witch,  in  the  code  known  as  the  Sobornoid  Oulogenie\  The 
more  enlightened  branch  of  the  Sclavonic  race,  however, 
the  Poles,  abolished  it  in  the  fourteenth  century;  but 
Macieiowski  states  that  in  Servia  and  Bulgaria  the  custom 
has  been  preserved  teethe  present  day.3 

In  other  countries,  the  custom  likewise  lingered  to  a 
comparatively  late  period.  Scotland,  indeed,  was  some- 
what in  advance  of  her  neighbors ;  for  in  the  year  1400, 
the  Parliament  showed  the  influence  of  advancing  civiliza- 

1  Quia  in  duellorum  dimicatione  plurimre  hinc  inde  fraudes  committi  pos- 
sunt;  raro  enim  illi  inter  quos  illud  fit  judicium  per  se  decertant,  sed  pugi- 
les  conducunt,  qui  nonnunquam  dc-no,  favore,  et  promissis  corrumpuntur. — 
L.  Uladis.  II.  c.  ix.     (Batthyani,  I.  531). 

0  Duellorum  et  glndiatorum  hujusmodi  usum  damnamus  et  improbamus, 
et  in  terrisRom.  Ecclesise  mediate  vel  immediate  subjectis  .  .  .  .  e  quacunque 
causa,  etiam  a  legibus  permissa,  fieri  omnino  prohibeinus. — Can.  Regis 
Pacifici,  De  Duello,  in  Septimo. 

3  For  these  details  I  am  indebted  to  Du  Boys,  Droit  Criminel  des  Peuples 
Modernes,  I.  611-17,  650. 

15 


110  THE    WAGER    OF    BATTLE. 

tion  by  limiting  the  practice  in  several  important  particu- 
lars, which,  if  strictly  observed,  must  have  almost  rendered 
it  obsolete.  Four  conditions  were  pronounced  essential 
prerequisites:  the  accusation  must  be  for  a  capital  crime; 
the  offence  must  have  been  committed  secretly  and  by 
treachery ;  reasonable  cause  of  suspicion  must  be  shown 
against  the  accused,  and  direct  testimony  both  of  witnesess 
and  documents  must  be  wanting.1 

Still  the  "  perfervida  ingenium  Scot orum"  clung  to  the 
arbitrament  of  the  sword  with  great  tenacity.  Knox  relates 
that  in  1562,  when  the  Earl  of  Arran  was  consulting  with 
him  and  others  respecting  a  proposed  accusation  against 
Bothwell  for  high  treason  arising  out  of  a  plan  for  seizing 
Queen  Mary  which  Bothwell  had  suggested,  the  Earl  re- 
marked, "  I  know  that  he  will  offer  the  combate  unto  me, 
but  that  would  not  be  suffered  in  France,  but  I  will  do  that 
which  I  have  proposed."  In  156?,  also,  when  Bothwell 
underwent  a  mock  trial  for  the  murder  of  Darnley,  he 
offered  to  justify  himself  by  the  duel ;  and  when  the  Lords 
of  the  Congregation  took  up  arms  against  him,  alleging  as 
a  reason  the  murder  and  his  presumed  designs  against  the 
infant  James  II.,  Queen  Mary's  proclamation  against  the 
rebels  recites  his  challenge  as  a  full  disproval  of  the  charges. 
When  the  armies  were  drawn  up  at  Carberry  Hill,  Both- 
well  again  came  forward  and  renewed  his  challenge.  James 
Murray,  who  had  already  offered  to  accept  it,  took  it  up 
at  once,  but  Bothwell  refused  to  meet  him  on  account  of 
the  inequality  in  their  rank.  Murray's  brother,  William 
of  Tullibardin,  then  offered  himself,  and  Bothwell  again 
declined,  as  the  Laird  of  Tullibardin  was  not  a  peer  of  the 
realm.  Many  nobles  then  eagerly  proposed  to  take  his 
place,  and  Lord  Lindsay  especially  insisted  on  being  al- 
lowed the  privilege  of  proving  the  charge  on  Both  well's 

1  Statut.  Roberti  III.  cap.  iii. 


ENGLAND.  171 

body,  but  the  Litter  delayed  on  various  pretexts)  until 
Queen  Mary  was  able  to  prohibit  the  combat.1 

In  England,  the  resolute  conservatism,  Which  resists 
innovation  to  the  last,  prolonged  the  existence  of  the  wager 
Of  battle  until  a  period  unknown  in  other  civilized  nations. 
At  the  close  of  the  fourteenth  century,  when  France  was 
engaged  in  rendering  it  rapidly  obsolete,  Thomas,  Duke  of 
Gloucester,  dedicated  to  his  nephew  Richard  II.,  a  treatise 
detailing  elaborately  the  practice  followed  in  the  Marshal's 
court  with  respect  to  judicial  duels.8  Even  a  century  later, 
legislation  was  obtained  to  prevent  its  avoidance  in  certain 
cases.  The  "  Statute  of  Gloucester"  (6  Ed.  III.  cap.  9), 
in  1333,  had  given  to  the  appellant  a  year  and  a  day  in 
which  to  bring  his  appeal  of  murder — a  privilege  allowed 
the  next  of  kin  to  put  the  accused  on  a  second  trial  after 
an  acquittal  on  a  public  indictment — which,  as  a  private 
suit,  was  usually  determined  by  the  combat.  In  practice,  this 
privilege  was  generally  rendered  unavailing  by  postponing 
the  public  prosecution  until  the  expiration  of  the  delay,  so 
as  to  prevent  the  appeal.  In  1488,  however,  the  Act  3 
Henry  VII.  cap.  1,  ordered  that  all  indictments  should  be 
prosecuted  forthwith,  and  that  the  appellee  should  not  be 
permitted  in  appeals  to  plead  his  previous  acquittal.3 

With  the  advance  of  civilization  and  refinement,  the  cus- 
tom gradually  declined,  but  it  was  not  until  the  time  of 
Elizabeth  that  it  was  even  abolished  in  civil  cases.  In  1511 
this  was  brought  about,  as  Spelman  says,  u  non  sine  magna 
jurisconsultorum  perturbatione,"  in  consequence  of  its  em- 
ployment in  the  case  of  Low  et  al.  vs.  Paramore.  To  de- 
termine the  title  to  an  estate  in  Kent,  Westminster  Hall 
j  was  forced  to  adjourn  to  Tothill  Fields,  and  all  the  forms 
of  a  combat  were  literally  enacted,  though  an  accommoda- 

il  Knox's  Hist,  of  Reform,  in  Scotland,  pp.  332,  446-7. 
3  Spelman  (Gloss,  s.  v.  Campus)  gives  a  Latin  translation  of  this  interest- 
ing document,  from  a  MS.  of  the  period. 


172  THE    WAGER    OF    BATTLE. 

tion  between  the  parties  saved  the  skulls  of  their  cham- 
pions.1 

Yet  even  then  it  was  not  thought  advisable  to  extend 
the  reform  to  the  criminal  law.  A  curious  custom,  peculiar 
to  the  English  jurisprudence,  allowed  a  man  indicted  for  a 
capital  offence  to  turn  u  approver,"  by  confessing  the  crime 
and  charging  or  appealing  any  one  he  chose  as  an  accom- 
plice, and  this  appeal  was  usually  settled  by  the  single 
combat.  This  was  sufficiently  frequent  to  require  legisla- 
tion as  late  as  the  year  1599,  when  the  Act  41  Eliz.  chap. 
3  was  passed  to  regulate  the  nice  questions  which  attended 
appeals  of  several  persons  against  one,  or  of  one  person 
against  several.  In  the  former  case,  the  appellee  if  victori- 
ous in  the  first  duel  was  acquitted ;  in  the  latter,  the  appel- 
lor was  obliged  to  fight  successively  with  all  the  appellees.3 
Even  in  the  seventeenth  century,  instances  of  the  battle 
ordeal  between  persons  of  high  station  are  on  record,  and 
Sir  Matthew  Hale,  writing  towards  the  close  of  the  century, 
feels  obliged  to  describe  with  considerable  minuteness  the 
various  niceties  of  the  law,  though  he  is  able  to  speak  of 
the  combat  as  "  an  unusual  trial  at  this  day."3 

In  lit 4,  the  subject  incidentally  attracted  attention  in  a 
manner  not  very  creditable  to  the  enlightenment  of  English 
legislation.  When,  to  punish  the  rebellious  Bostonians  for 
destroying  the  obnoxious  tea,  a  "Bill  for  the  improved 
administration  of  justice  in  the  Province  of  Massachusetts 
Bay"  was  passed,  it  originally  contained  a  clause  depriving 
the  New  Englanders  of  the  appeal  of  murder,  by  which,  it 
will  be  remembered,  a  man  acquitted  of  a  charge  of  murder 
could  be  again  prosecuted  by  the  next  of  kin,  and  the  ques- 
tion could  be  determined  by  the  wager  of  battle.  The 
denial  of  this  ancestral  right  aroused  the  indignation  of 
the  liberal  party  in  the  House  of  Commons,  and  the  point 

1  Spelman.  Gloss,  p.  103. 

2  Hale,  Pleas  of  the  Crown,  II.  chap.  xxix. 

3  Loc.  cit. 


THE  NINETEENTH  CENTURY.  173 

was  warmly  contested  She  Learned  ami  eloquent  Dunning, 
afterwards  Lord  aahburton,  one  of  the  leaders  of  opposi- 
tion, defended  the  ancient  custom  in  the  strongest  terms. 
"  I  rise,"  said  he,  M  to  support  that  great  pillar  of  the  con- 
stitution, the  appeal  for  murder ;  I  fear  there  is  a  wish  to 
establish  a  precedent  for  taking  it  away  in  England  as  well 
as  in  the  colonies.  It  is  called  a  remnant  of  barbarism  and 
gothicism.     The  whole  of  our  constitution,  for  aught   I 

know,  is  gothic I  wish,  sir,  that  gentlemen  would 

be  a  little  more  cautious,  and  consider  that  the  yoke  we 
are  framing  for  the  despised  colonists  may  be  tied  round 
our  own  necks !"  Even  Burke  was  heard  to  lift  a  warning 
voice  against  the  proposed  innovation,  and  the  obnoxious 
clause  had  to  be  struck  out  before  the  ministerial  majority 
could  pass  the  bill.1  Something  was  said  about  reforming 
the  law  throughout  the  empire,  but  it  was  not  done,  and 
the  beauty  of  the  "great  pillar  of  the  constitution,"  the 
appeal  of  murder,  was  shown  when  the  nineteenth  century 
was  disgraced  by  the  resurrection  of  all  tjie  barbaric 
elements  of  criminal  jurisprudence.  In  1818,  the  case  of 
Ashford  vs.  Thornton  created  much  excitement.  Ashford 
was  the  brother  of  a  murdered  girl,  whose  death,  under 
circumstances  of  peculiar  atrocity,  was  charged  upon 
Thornton,  with  every  appearance  of  probability.  Acquitted 
on  a  jury  trial,  Thornton  was  appealed  by  Ashford,  when 
he  pleaded  "Not  guilty,  and  I  am  ready  to  defend  the 
same  by  my  body."  After  elaborate  argument,  Lord 
Ellenborough,  with  the  unanimous  assent  of  his  brother 
justices,  sustained  the  appellee's  right  to  this  as  "the 
usual  and  constitutional  mode  of  trial,"  expounding  the 
law  in  almost  the  same  terms  as  those  which  we  read 
in  Bracton  and  Beaumanoir.3  The  curious  crowd  was 
sorely  disappointed  when  the  appellant  withdrew,  and  the 

1  Campbell's  Lives  of  the  Chancellors  of  England,  VI.  112. 
3  I.  Barnewall  &  Alderson,  457. 
15* 


174  THE    WAGER    OF    BATTLE. 

chief  justice  was  relieved  from  the  necessity  of  presiding 
over  a  gladiatorial  exhibition.  A  similar  case  occurred 
almost  simultaneously  in  Ireland,  and  the  next  year  the 
act  59  Geo.  III.  chap.  46,  at  length  put  an  end  for  ever  to 
this  last  remnant  of  the  age  of  chivalry.1 

1  Campbell,  Chief  Justices,  III   169. 


III. 

THE  ORDEAL 


It  is  only  in  an  age  of  high  and  refined  mental  culture 
that  man,  unassisted  by  direct  inspiration,  can  entertain  an 
adequate  conception  of  the  Supreme  Being.  An  Omnipo- 
tence that  can  work  out  its  destined  ends,  and  yet  allow 
its  mortal  creatures  free  scope  to  mould  their  own  fragmen- 
tary portions  of  the  great  whole ;  a  Power  so  infinitely  great 
that  its  goodness,  mercy,  and  justice  are  compatible  with 
the  existence  of  evil  in  the  world  which  it  has  formed,  so 
that  man  has  full  liberty  to  obey  the  dictates  of  his  baser 
passions,  without  being  released  from  responsibility,  and, 
at  the  same  time,  without  disturbing  the  preordained  re- 
sults of  Divine  wisdom  and  beneficence — these  are  not  the 
ideas  which  prevail  in  the  formative  periods  of  society. 
Accordingly,  in  the  earlier  epochs  of  almost  all  races,  a 
belief  in  a  Divine  Being  is  accompanied  with  the  expecta- 
tion that  special  manifestations  of  power  will  be  made  on 
all  occasions,  and  that  the  interposition  of  Providence  may 
be  had  for  the  asking,  whenever  man,  in  the  pride  of  his 
littleness,  condescends  to  waive  his  own  judgment,  and 
undertakes  to  test  the  inscrutable  ways  of  his  Creator  by 
the  touchstone  of  his  own  limited  reason.  Thus  miracles; 
come  to  be  expected  as  matters  of  every-day  occurrence, 
and  the  laws  of  nature  are  to  be  suspended  whenever  man 
chooses  to  tempt  his  God  with  the  promise  of  right  and  the 
threat  of  injustice  to  be  committed  in  His  name. 

To  these  elements  of  the  human  mind  is  attributable  the 


176  THE    ORDEAL. 

almost  universal  adoption  of  the  so-called  Judgment  of 
God,  by  which  men,  oppressed  with  doubt,  have  essayed 
in  all  ages  to  relieve  themselves  from  responsibility  by 
calling  in  the  assistance  of  Heaven.  Nor,  in  so  doing, 
have  they  seemed  to  appreciate  the  self-exaltation  implied 
in  the  act  itself,  but,  in  all  humility,  have  cast  themselves 
and  their  sorrows  at  the  feet  of  the  Great  Judge,  making  a 
merit  of  abnegating  the  reason  which,  however  limited,  has 
been  bestowed  to  be  used  and  not  rejected.  In  the  Car- 
lovingian  Capitularies  there  occurs  a  passage,  dictated 
doubtless  by  the  spirit  of  genuine  trust  in  God,  which  well 
expresses  the  pious  sentiments  presiding  over  acts  of  the 
grossest  practical  impiety.  "  Let  doubtful  cases  be  deter- 
mined by  the  judgment  of  God.  The  judges  may  decide 
that  which  they  clearly  know,  but  that  which  they  cannot 
know  shall  be  reserved  for  Divine  judgment.  Whom  God 
hath  kept  for  his  own  judgment  may  not  be  condemned  by 
human  means.  'Therefore  judge  nothing  before  the  time, 
until  the  Lord  come,  who  both  will  bring  to  light  the  hidden 
things  of  darkness,  and  will  make  manifest  the  counsels  of 
the  hearts.'  m     (1  Cor.  iv.  5.) 

With  but  one  exception,  the  earliest  records  of  the  human 
race  bear  witness  to  the  existence  of  the  superstition  thus 
dignified  with  the  forms  of  Christian  faith,  and  this  excep- 
tion, as  might  be  anticipated,  is  furnished  by  China.  Her 
strange  civilization  presents  itself,  in  the  Sacred  Books 
collected  by  Confucius  five  hundred  years  before  the  Chris- 
tian era,  in  nearly  the  same  form  as  it  exists  to  this  day, 
guided  by  a  religion  destitute  of  life,  and  consisting  of  a 
system  of  cold  morality,  which  avoids  the  virtues  as  well 

1  "Inambiguis,  Dei  judicio  reservetur  sententia.  Quod  certe  agnoseunt 
suo,  quod  nesciunt  divino  reservent  judicio.  Quoniam  non  potest  humano 
condemnari  examine  quern  Deus  suo  judicio  reservavit.  Incerta  narnque 
non  debemus  judicare  quoadusque  veniat  Dominus,  qui  latentia  producet  in 
lucem,  et  inluminabit  abscondita  tenebrarum,  et  manifestabit  consilia  cor- 
diuui.'' — Capit.  Lib.  vu.  cap.  259. 


CHINA  —  INDIA.  177 

ms  the  errors  of  more  Imaginative  and  generous  (kith.  In 
the  most  revered  and  authoritative  of  the  Chinese  scrip- 
tares,  the  Chou-Kingi  or  Holy  Book,  of  which  the  origin 
is  lost  in  fabulous  antiquity,  we  find  a  theo-philosophy 
recognizing  a  Supreme  Power  (Tai-Ki)  or  Beaven,  which 
is  pure  reason,  or  the  embodiment  of  the  laws  and  forces 
of  Nature,  acting  under  the  pressure  of  blind  destiny. 
Trace  back  the  Chinese  belief  as  far  as  we  may,  we  cannot 
gel  behind  this  refined  and  philosophical  scepticism.  The 
flowery  kingdom  starts  from  the  night  of  Chaos  intellec- 
tually  full-grown,  like  Minerva,  and  from  first  to  last  there 
is  no  semblance  of  a  creed  which  would  admit  of  the  direct 
practical  intervention  of  a  higher  power.  The  fullest  ad- 
mission which  this  prudent  reserve  will  allow  is  expressed 
by  the  legislator  Mou-Vang  (about  1000  B.  C.)  in  his  in- 
structions to  his  judges  in  criminal  cases:  "Say  not  that 
Heaven  is  unjust — it  is  that  man  brings  these  evils  on  hi  in- 
self.  If  it  were  not  that  Heaven  inflicts  these  severe  pun- 
ishments, the  world  would  be  ungoverned."1  In  the  modern 
penal  code  of  China  there  is  accordingly  no  allusion  to 
evidence  other  than  that  of  witnesses,  and  even  oaths  are 
neither  required  nor  admitted  in  judicial  proceedings.9 

When  we  turn,  however,  to  the  other  great  source  ox 
Asiatic  jurisprudence,  whose  fantastic  intricacy  forms  so 
strange  a  contrast  to  the  coeval  sober  realism  of  China,  we 
find  in  the  laws  of  Manu  abundant  proof  of  our  general 
proposition.  There  is  no  work  of  the  human  intellect 
which  offers  so  curious  a  field  of  speculation  to  the  stu- 
dent of  human  nature ;  none  in  which  the  transitions  are 
so  abrupt,  or  the  contradictions  so  startling,  between  the 
most  sublime  doctrines  of  spiritual  morality,  and  the 
grossest  forms  of  puerile  superstition ;  between  elevated 
precepts  of  universal  justice,  and  the  foulest  partialitj-  in 

1  Chou-King,  Partiv.  chap.  27  §  21  (after  Goubil's  translation). 
1  Staunton,  Penal  Code  of  China,  p.  364. 


1T8  THE    ORDEAL. 

specific  cases.  Its  very  complexity  reveals  a  highly  civi- 
lized state  of  societ}r,  and  the  customs  and  observances 
which  it  embodies  are  evidently  not  innovations  on  an 
established  order  of  things,  but  merely  a  compilation  of 
regulations  and  procedures  established  through  previous 
ages,  whose  origin  is  lost  in  the  trackless  depths  of  remote 
antiquity.  When,  therefore,  we  see  in  the  Hindoo  code 
the  same  strange  and  unnatural  modes  of  purgation  which 
two  thousand  years  later1  greet  us  on  the  threshold  of 
European  civilization,  adorned  but  not  concealed  by  a  thin 
veil  of  Christianized  superstition,  the  coincidence  seems 
more  than  accidental.  That  the  same  principle  should  be 
at  work  in  each,  we  can  account  for  by  the  general  tenden- 
cies of  the  human  mind;  but  that  this  principle  should 
manifest  itself  under  identical  forms  in  races  so  far  re- 
moved by  time  and  space,  offers  a  remarkable  confirmation 
of  the  community  of  origin  of  the  great  Aryan  or  Indo- 
Germanic  family  of  mankind.  In  the  following  texts,  the 
principal  forms  of  Ordeal  prescribed  are  precisely  simi- 
lar to  the  most  popular  of  the  mediaeval  judgments  of 
God:— 

"Or,  according  to  the  nature  of  the  case,  let  the  judge  cause  him 
who  is  under  trial  to  take  fire  in  his  hand,  or  to  plunge  in  water,  or 
to  touch  separately  the  heads  of  his  children  and  of  his  wife. 

"Whom  the  flame  burneth  not,  whom  the  water  rejects  not  from 
its  depths,  whom  misfortune  overtakes  not  speedily,  his  oath  shall  be 
received  as  undoubted. 

"  When  the  Richi  Vatsa  was  accused  by  his  young  half-brother, 
who  stigmatized  him  as  the  son  of  a  Soudra,  he  sware  that  it  was  false, 
and  passing  through  fire  proved  the  truth  of  his  oath  ;  the  fire,  which 
attests  the  guilt  and  the  innocence  of  all  men,  harmed  not  a  hair  of 
his  head,  for  he  spake  the  truth."2 

1  Sir  William  Jones  places  the  composition  of  the  Laws  of  Manu  about 
880  B.  C.  More  recent  investigators,  however,  have  arrived  at  the  conclu- 
sion, that  they  are  anterior  to  the  Christian  era  by  at  least  thirteen  cen- 
turies. 

■  Laws  of  Manu,  Book  viii.  v.  114-116  (after  Delongchamp's  translation). 


INDIA  —  EGYPT.  H9 

That  this  was  not  merely  a  theoretical  injunction  is 
shown  by  a  subsequent  provision  (Book  VIII.  v.  190), 
enjoining  the  ordeal  on  both  plaintiff  and  defendant,  even 
in  certain  civil  cases.  From  the  immutable  character  of 
Eastern  institutions,  we  need  not  be  surprised  to  see  the 
custom  flourishing  in  India  to  the  present  day,  and  to  find 
that,  in  the  popular  estimation,  the  right  of  plaintiff  or 
defendant,  or  the  guilt  or  innocence  of  the  accused  is  to  be 
tested  by  his  ability  to  carry  red-hot  iron,  to  plunge  his 
hand  unhurt  in  boiling  oil,  to  pass  through  fire,  to  remain 
under  water,  to  swallow  consecrated  rice,  to  drink  water 
in  which  an  idol  has  been  immersed,  and  by  various  other 
forms  which  still  preserve  their  hold  on  public  veneration,1 
as  many  of  them  did  within  five  or  six  centuries  among 
our  own  forefathers. 

The  numerous  points  of  resemblance  existing  between 
the  Indian  and  Egyptian  civilizations,  which  render  it  pro- 
bable that  the  one  was  derived  from  the  other,  lead  us  also 
to  presume  that  these  superstitions  were  common  to  both 
races.  Detailed  evidence,  such  as  we  possess  in  the  case 
of  Hindostan,  is,  however,  not  to  be  expected  with  regard 
to  Egypt,  of  which  the  literature  has  so  utterly  perished ; 
but  an  incident  related  by  Herodotus  shows  us  that  the 
same  belief  existed  in  the  land  of  the  Pharaohs,  in  at  least 
one  form,  and  that  in  judicial  proceedings  an  appeal  was 
occasionally  made  to  some  deity,  whose  response  had  all  the 
weight  of  a  legal  judgment,  a  direct  interposition  of  the 
divinity  being  expected  as  a  matter  of  course  by  all  parties. 
King  Amasis,  whose  reign  immediately  preceded  the  inva- 
sion of  Cambyses,  "is  said  to  have  been,  even  when  a 

1  The  purrikeh  or  ordeal  is  prescribed  in  the  modern  Hindoo  law  in  all 
cases,  civil  and  criminal,  which  cannot  be  settled  by  written  or  oral  evidence 
or  by  oath.  It  is  sometimes  indicated  for  the  plaintiff  and  sometimes  for  the 
defendant. — Qentoo  Code,  Halhed?s  Translation,  chap.  iii.  §§  5,  6,  9,  10; 
chap,  xviii.  (E.  I.  Company,  London,  1776.)  The  different  forms  of  ordeal 
will  be  found  described  in  Gladwin's  Translation  of  the  Ayeen  Akbery,  or 
Institutes  of  the  Sultan  Akbar,  Vol.  II.  pp.  496  sqq.  (London,  1800.) 


180  THE    ORDEAL. 

private  person,  fond  of  drinking  and  jesting,  and  by  no 
means  inclined  to  serious  business ;  and  when  the  means 
failed  him  for  the  indulgence  of  his  appetites,  he  used  to  go 
about  pilfering.  Such  persons  as  accused  him  of  having 
their  property,  on  his  denying  it,  used  to  take  him  to  the 
oracle  of  the  place,  and  he  was  oftentimes  convicted  by  the 
oracles,  and  oftentimes  acquitted.  When,  therefore,  he  had 
come  to  the  throne,  he  acted  as  follows :  Whatever  gods 
had  absolved  him  from  the  charge  of  theft,  of  their  temples 
he  neither  took  any  heed,  nor  contributed  anything  toward 
their  repair ;  neither  did  he  frequent  them  nor  offer  sacri- 
fices, considering  them  of  no  consequence  at  all,  and  as 
having  only  lying  responses  to  give.  But  as  many  as  had 
convicted  him  of  the  charge  of  theft,  to  them  he  paid  the 
highest  respect,  considering  them  as  truly  gods,  and  deli- 
vering authentic  responses."1 

A  passing  allusion  only  is  necessary  to  the  instances, 
which  will  readily  occur  to  the  Biblical  student,  in  the 
Hebrew  legislation  and  history.  The  bitter  water  by  which 
conjugal  infidelity  was  revealed  (Numbers  v.  11-31),  was 
an  ordeal  pure  and  simple,  as  were  likewise  the  special 
cases  of  determining  criminals  by  lot,  such  as  that  of  Achan 
(Joshua  vii.  16-18)  and  of  Jonathan  (I  Samuel  xiv.  41,  42), 
— precedents  which  were  duly  put  forward  by  the  monkish 
defenders  of  the  practice,  when  battling  against  the  efforts 
of  the  Papacy  to  abolish  it. 

Looking  to  the  farthest  East,  we  find  the  belief  in  full 
force  in  Japan.  Fire  is  there  considered,  as  in  India,  to  be 
the  touchstone  of  innocence,3  and  other  superstitions,  less 
dignified,  have  equal  currency.  The  goo,  a  paper  inscribed 
with  certain  cabalistic  characters,  and  rolled  up  into  a 
bolus,  when  swallowed  by  an  accused  person,  is  believed 
to  afford  him  no  internal  rest,  if  guilty,  until  he  is  relieved 

1  Euterpe,  174  (Cary's  translation). 

2  Kb'nigswarter,  Etudes  Historiques  sur  le  Developpeinent  de  la  Societc 
Huuiaine,  p.  203. 


.TAP  AN  —  TIIIIIET  —  T  II  K     QUEBBES.  181 

by  confession ;  and  :i  beverage  of  water  in  which  t  lie  goo 
has  been  Boaked  is  attended  with  like  happy  effects.1  The 
Immobility  of  Japanese  customs  authorizes  us  to  con- 
clude that  these  practices  have  been  observed  from  time 
immemorial.1 

In  Pegu, the  same  ordeals  are  employed  as  in  India,  and 
Java  and  Malacca  are  equally  well  supplied.3  Thibetan 
justice  has  a  custom  of  its  own,  which  is  literally  even- 
handed,  and  which,  if  generally  used,  must  exert  a  powerful 
influence  in  repressing  litigation.  Both  plaintiff  and  de- 
fendant thrust  their  arms  into  a  caldron  of  boiling  water 
containing  a  black  and  a  white  stone,  victory  being  assigned 
to  the  one  who  succeeds  in  obtaining  the  white.4 

Among  the  crowd  of  fantastic  legends  concerning  Zoro- 
aster is  one  which,  from  its  resemblance  to  the  ordeal  of 
fire,  may  be  regarded  as  indicating  a  tendency  to  the  same 
form  of  superstition  among  the  Guebres.  They  relate  that, 
when  an  infant,  he  was  seized  by  the  magicians,  who  pre- 
dicted his  future  supremacy  over  them,  and  was  thrown 
upon  a  blazing  fire.  The  pure  element  refused  to  perform 
its  office,  and  was  changed  into  a  bath  of  rose-water  for 
the  wonderful  child.5 

1  Collin  de  Plancy,  Dictionnaire  Infernal,  pp.  255  and  305. 

-  The  preservation  of  the  status  in  quo  is  amply  provided  for  in  Japan. 
Any  functionary  of  the  government,  however  exalted,  who  attempts  an  inno- 
vation, is  forthwith  reported  to  headquarters  and  capitally  sentenced.  Even 
in  the  supreme  council,  a  member  who  proposes  an  alteration  in  the  existing 
state  of  affairs  loses  his  life  if  it  is  not  adopted  ;  while,  on  the  other  hand, 
the  Ziogoon  or  Emperor  is  put  to  death  if  he  rejects  such  an  alteration  after 
it  has  passed  the  council,  on  his  rejection  being  disapproved  by  an  interior 
committee,  consisting  of  his  relatives.  If  his  action  be  sustained  by  this  com- 
mittee, then  all  who  voted  for  the  unsuccessful  measure  in  the  supreme 
council  are  liable  to  the  same  fate.  (Perry's  Japan  Expedition,  I.  16,  17.) 
Under  these  regulations,  existing  institutions  may  be  regarded  as  almost 
imperishable. 

3  Konigswarter,  op.  cit.  p.  202. 

*  Duclos,  Mem.  sur  les  Epreuves. 

1  Collin  de  Plancy,  op.  cit.  p.  555. 

16 


182  THE     ORDEAL. 

To  some  extent,  the  Moslems  are  an  exception  to  the 
general  rule ;  and  this  may  be  attributed  to  the  doctrine  of 
predestination  which  forms  the  basis  of  their  creed,  as  well 
as  to  the  elevated  ideas  of  the  Supreme  Being  which  Ma- 
homet drew  from  the  Bible,  and  which  are  so  greatly  in 
advance  of  all  the  Pagan  forms  of  belief.  There  is  accord- 
ingly no  authority  in  the  Koran  for  any  description  of 
ordeal;  but  yet  it  is  occasionally  found  among  the  true 
believers.  Among  some  tribes  of  Arabs,  for  instance,  the 
ordeal  of  red-hot  iron  appears  in  the  shape  of  a  gigantic 
spoon,  to  which,  when  duly  heated,  the  accused  applies  his 
tongue,  his  guilt  or  innocence  being  apparent  from  his 
undergoing  or  escaping  injury.1  The  tendency  of  the  mind 
towards  superstitions  of  this  nature,  in  spite  of  the  opposite 
teaching  of  religious  dogmas,  is  likewise  shown  by  a  species 
of  divination  employed  among  the  Turks,  through  which 
thieves  are  discovered  by  observing  the  marks  on  wax 
slowly  melted  while  certain  cabalistic  sentences  are  repeated 
over  it.3 

Somewhat  similar  is  a  custom  prevalent  in  Tahiti,  where 
in  cases  of  theft,  when  the  priest  is  applied  to  for  the  dis- 
covery of  the  criminal,  he  digs  a  hole  in  the  clay  floor  of 
the  house,  fills  it  with  water,  and,  invoking  his  god,  stands 
over  it  with  a  young  plantain  in  his  hand.  The  god  to 
whom  he  prays  is  supposed  to  conduct  the  spirit  of  the 
thief  over  the  water,  and  the  priest  recognizes  the  image  by 
looking  in  the  pool.3 

The  gross  and  clumsy  superstitions  of  Africa  have  this 
element  in  common  with  the  more  refined  religions  of  other 
races,  modified  only  in  its  externals.  Thus,  among  the 
Kalabarese,  various  ordeals  are  in  use,  of  a  character  which 
reveals  the  rude  nature  of  the  savage.  The  "  afia-edet-ibom" 
is  administered  with  the  curved  fang  of  a  snake,  which  is 

1  Konigswarter,  op.  cit.  p.  203. 

2  Collin  de  Plancy,  s.  v.   Ceromancie. 

3  Ellis,  Polynesian  Researches,  Vol.  I.  chap.  14. 


AFRICAN    SUPERSTITIONS.  183 

cunningly  Inserted  under  the  Lid  and  round  the  ball  of  the 
defendant's  e3*e;  if  innocent,  he  is  expected  to  eject  it  by 
rolling  the  eye,  while,  If  unable  to  perform  this  feat,  it  is 
removed  with  a  leopard's  tooth,  and  he  is  condemned.  The 
ceremony  of  the  " afia-ibnot-idiok"  is  even  more  childish. 
A  wliite  and  a  black  line  are  drawn  on  the  skull  of  a  chim- 
panzee, which  is  then  held  up  before  the  accused,  when  an 
apparent  attraction  of  the  white  line  towards  him  indicates 
his  innocence,  or  an  inclination  of  the  black  towards  him 
pronounces  his  guilt.  The  use  of  the  ordeal-nut  is  more 
formidable,  as  it  contains  an  active  principle  which  is  a 
deadly  poison,  manifesting  its  effects  by  frothing  at  the 
mouth,  convulsions,  paralysis,  and  speedy  death.  In  capi- 
tal cases,  or  even  when  sickness  is  attributed  to  unfriendly 
machinations,  the  "abiadiong,"  or  sorcerer,  decides  who 
shall  undergo  the  trial,  and  as  the  poisonous  properties  of 
the  nut  can  be  eliminated  by  preliminary  boiling,  liberality 
on  the  part  of  the  accused  is  supposed  to  be  an  unfailing 
mode  of  rendering  the  ordeal  harmless.1 

The  ordeal  of  red  water,  or  infusion  of  "  sassy  bark,"  also 
prevails  throughout  a  wide  region  in  Western  Africa.  As 
described  by  Dr.  Winterbottom,  it  is  administered  in  the 
neighborhood  of  Sierra  Leone,  by  requiring  the  accused  to 
fast  for  the  previous  twelve  hours,  and  to  swallow  a  small 
quantity  of  rice  previous  to  the  trial.  The  infusion  is 
then  taken  in  large  quantities,  as  much  as  a  gallon  being 
sometimes  employed ;  if  it  produces  emesia,  so  as  to  eject 
all  of  the  rice,  the  proof  of  innocence  is  complete,  but  if  it 
fails  in  this,  or  if  it  acts  as  a  purgative,  the  accused  is  con- 
demned. It  has  narcotic  properties  also,  a  manifestation 
of  which  is  likewise  fatal  to  the  sufferer.  Among  some  of 
the  tribes  this  is  determined,  as  described  by  the  Rev.  Mr. 
Wilson,  by  placing  small  sticks  on  the  ground  at  distances 
of  about  eighteen  inches  apart,  among  which  the  patient  is 

1  Hutchinson's  Impressions  of  Western  Africa.    London,  1858. 


184  THE    ORDEAL. 

required  to  walk,  a  task  rendered  difficult  by  the  vertigi- 
nous effects  of  the  poison.  Although  death  not  infre- 
quently results  from  the  ordeal  itself,  without  the  subse- 
quent punishment,  3Tet  the  faith  reposed  in  these  trials  is 
well  expressed  by  Dr.  Livingstone,  who  describes  the 
eagerness  with  which  they  are  demanded  by  those  accused 
of  witchcraft,  confiding  in  their  innocence,  and  believing 
that  the  guilty  alone  can  suffer.  When  the  emetic  effects 
are  depended  on,  the  popular  explanation  is  that  the  fetish 
enters  with  the  draught,  examines  the  heart  of  the  accused, 
and,  in  cases  of  innocence,  returns  with  the  rice  as  evi- 
dence.1 

In  Madagascar,  the  ordeal  is  administered  with  the  nut 
of  the  Tangena,  the  decoction  of  which  is  a  deadly  poison. 
In  the  persecution  of  the  Malagasy  Christians,  in  1836, 
many  of  the  converts  were  tried  in  this  manner,  and  num- 
bers of  them  died.  It  was  repeated  with  the  same  effect  in 
the  persecution  of  1849.3 

Although  the  classical  nations  of  antiquity  were  not  in 
the  habit  of  employing  ordeals  as  a  judicial  process,  during 
the  periods  in  which  their  laws  have  become  known  to  us, 
still  there  is  sufficient  evidence  that  a  belief  in  their  efficacy 
existed  before  philosophical  skepticism  had  reduced  religion 
to  a  system  of  hollow  observances.  The  various  modes  of 
divination  by  oracles  and  omens,  which  occupy  so  promi- 
nent a  position  in  history,  manifest  a  kindred  tendency  of 
mind,  in  demanding  of  the  gods  a  continual  interference  in 
human  affairs,  at  the  call  of  any  suppliant,  and  we  are 
therefore  prepared  to  recognize  among  the  Greeks  the 
relics  of  pre-existing  judicial  ordeals  in  various  forms  of 
solemn  oaths,  by  which,  under  impressive  ceremonies, 
actions  were  occasionally  terminated,  the  party  swearing 

1  See  an  elaborate  "  Examination  of  the  Toxicological  Effects  of  Sassy- 
Bark,"  by  Drs.  Mitchell  and  Hammond,  Proceedings  of  the  Biological  Dep. 
of  the  Acad,  of  Nat.  Sciences,  Philadelphia,  1859. 

-  Ellis's  Three  Visits  to  Madagascar,  chap.  i.  vi. 


GtBISOE.  l#8 

being  obliged  to  take  the  oath  on  the  heads  of  his  children 

(xata  t-wi/  nou'6w),  with  curses  <»n  himself  and  his  family 
(xar  JJwXuaf),  or  passing  through  lire  (5ia  tov  rtvpo?)-1  The 
secret  meaning  of  these  rites  becomes  fully  elucidated  <>u 
comparing  them  with  a  passage  from  the  Antigone  of 
Sophocles,  in  which,  the  body  of  Polynices  having  been 
secretly  carried  off  for  burial  against  the  commands  of 
Creon,  the  guard  endeavor  to  repel  the  accusation  of  com- 
plicity by  offering  to  vindicate  their  innocence  in  various 
forms  of  ordeal,  which  bear  a  striking  similarity  to  those 
in  use  throughout  India,  and  long  afterwards  in  mediaeval 
Europe. 

"Ready  with  hands  to  bear  the  red-hot  iron, 
To  pass  through  fire,  and  hy  the  gods  to  swear, 
That  we  nor  did  the  deed,  nor  do  we  know 
Who  counselled  it,  nor  who  performed  it."2 

The  water  ordeal,  which  is  not  alluded  to  here,  may, 
nevertheless,  be  considered  as  having  its  prototype  in  seve- 
ral fountains,  which  were  held  to  possess  special  power  in 
cases  of  suspected  female  virtue.  One  at  Artecomium, 
mentioned  by  Eustathius,  became  turbid  as  soon  as  en- 
tered by  a  guilty  woman.  Another,  near  Ephesus,  alluded 
to  by  Achilles  Tatius,  was  even  more  miraculous.  The 
accused  swrore  to  her  innocence,  and  entered  the  water, 
bearing  suspended  to  her  neck  a  tablet  inscribed  with  the 
oath.  If  she  were  innocent,  the  water  remained  stationary, 
at  the  depth  of  the  midleg ;  while,  if  she  were  guilty,  it  rose 
until  the  tablet  floated.  Somewhat  similar  to  this  was  the 
Lake  of  Palica  in  Sicily,  commemorated  by  Stephanas 
Byzantinus,  where  the  party  inscribed  his  oath  on  a  tablet, 

1  Smith,  Diet.  Greek  and  Roman  Antiq.  s.  v.  Martyria. 

KAl  TTvp  foifTTUV,   JCJU  6«jif  lpX.dOUO    t7v, 

to  fxvnt  fpantt,  y.miT(f>  Puvtrf'tvcu 

tb  vrpaJfA*.  !?cukij7etvTi,  /j.yit''  U/ytWfUW. 

Antigone,  ver.  2G4— 2G7. 
1G* 


1S6  THE     ORDEAL. 

and  committed  it  to  the  water,  when  if  the  oath  were  true 
it  floated,  and  if  false  it  sank.1 

The  Roman  nature,  sterner  and  less  impressible  than  the 
Greek,  offers  less  evidence  of  weakness  in  this  respect ;  but 
traces  of  it  are  nevertheless  to  be  found.  The  mediaeval 
corsnaed,  or  ordeal  of  bread,  finds  a  prototype  in  a  species 
of  alphitomancy  practised  near  Lavinium,  where  a  sacred 
serpent  was  kept  in  a  cave  under  priestly  care.  Women 
whose  virtue  was  impeached  offered  to  the  animal  cakes 
made  by  themselves,  of  barley  and  honey,  and  were  con- 
demned or  acquitted  according  as  the  cakes  were  eaten  or 
rejected.3  The  fabled  powers  of  the  settles,  or  eagle-stone, 
mentioned  by  Dioscorides,3  likewise  remind  us  of  the 
corsnaed,  as.  bread  in  which  it  was  placed,  or  food  with 
which  it  was  cooked,  became  a  sure  test  for  thieves,  from 
their  being  unable  to  swallow  it.  Special  instances  of 
miraculous  interposition  to  save  the  innocent  from  unjust 
condemnation  may  also  be  quoted  as  manifesting  the  same 
general  tendency  of  belief.  Such  was  the  case  of  the  vestal 
Tucca,  accused  of  incest,  who  demonstrated  her  purity  by 
carrying  water  in  a  sieve,4  and  that  of  Claudia  Quinta, 
who,  under  a  similar  charge,  made  good  her  defence  by 
dragging  a  ship  against  the  current  of  the  Tiber,  after  it 
had  run  aground,  and  had  resisted  all  other  efforts  to  move 
it.5     As  somewhat  connected  with  the  same  ideas,  we  may 

1  Eustathii  de  Amor.  Ismenii,  Lib.  vn.,  xi. ;  Achill.  Tatii  de  Amor. 
Clitoph.  Lib.  vm. ;  Stepb.  Byzant.  s.  v.  no.xiy.ri  (apud  Spelman,  Gloss,  p. 
324).  Superstitions  of  this  nature  have  obtained  in  all  ages,  and  these  par- 
ticular instances  find  their  special  modern  counterpart  in  the  fountain  of 
Bodilis,  near  Landivisiau  in  Britanny,  in  which  a  girl  when  accused  places 
the  pin  of  her  collar,  her  innocence  or  guilt  being  demonstrated  by  its  float- 
ing or  sinking. 

2  Collin  de  Plancy,  op.  cit.  p.  31. 

3  Lib.  v.  cap.  161  (ap.  Lindenbrog.). 

4  Valer.  Maxim.  Lib.  vm.  cap.  1. 

5  "Supplicie,  alma,  tuae,  genetrix  foecunda  Deorum, 
Accipe  sub  certa  conditione  preces. 


aoMi.  \xl 

Allude  to  llic  imprecations  accompanying  the  most  solemn 
form  <>r  oath  among  the  Romans,  known  aci  wJovem 
lapidem  jurare,"1  whether  we  take  Ike  ceremony,  men- 
tioned by  Festus,  of  casting  a  stone  from  the  hand,  and 
Invoking  Jupiter  to  reject  in  like  manner  the  swearer  if 
guilty  of  perjury,  or  that  described  by  Livy  as  preceding 
the  combat  between  the  Horatii  and  Curiatii,  in  which  an 
animal  was  knocked  on  the  head  with  a  stone,  under  a 
somewhat  similar  adjuration.9  There  is  no  trace  of  the 
system,  however,  in  the  Roman  jurisprudence,  which,  with 
the  exception  of  the  use  of  torture  at  the  later  periods,  is 
totally  in  opposition  to  its  theory.  Nothing  can  be  mope 
contrary  to  the  spirit  in  which  the  ordeal  is  conceived  than 
the  maxim  of  the  civil  law — "Accusatore  non  probante, 
reus  absolvitor." 

In  turning  to  the  Barbarian  races  from  which  the  nations 
of  modern  Europe  are  descended,  we  are  met  by  the  ques- 
tion, which  has  been  variously  mooted,  whether  the  ordeals 
that  form  so  prominent  a  part  of  their  jurisprudence  were 
customs  derived  from  remote  Pagan  antiquity,  or  whether 
they  were  inventions  of  the  priests  in  the  early  periods  of 

Casta  negor  ;  si  tu  damnas,  meruisse  fatebor. 

Morte  luam  poenas,  judice  victa  Dea. 
Sed  si  crimen  abest,  tu  nostrae  pignora  vita) 

Re  dabis  ;  et  castas  casta  sequere  manus. 
Dixit,  et  exiguo  funem  conanrine  traxit,"  etc. 

Ovid.  Fastorum  Lib.  iv.  1.  305  sqq. 

This  invocation  to  the  goddess  to  absolve  or  condemn,  and  the  manner  in 
which  the  entire  responsibility  is  thrown  upon  the  supernal  judge,  give  the 
whole  transaction  a  striking  resemblance  to  an  established  judicial  form  of 
ordeal. 

1  Quod  sanctissimum  jusjurandum  est  habitum.  (Aulus  Gellius,  i.  21.) 
3  "Si  sciens  fallo,  turn  me  Diespiter  salva  urbe  arceque  bonis  ejiciat,  ut 
ego  hunc  lapidem."  (Festus,  Lib.  x.  ;  Livy,  I.  24.)  If  we  can  receive  as 
undoubted  Livy's  account  of  a  similar  ceremony  performed  by  Hannibal  to 
encourage  his  soldiers  before  the  battle  of  Ticinus  (Lib.  xxi.  cap.  45),  we 
must  conclude  that  the  custom  hnd  obtained  a  very  extended  influence. 


188  THE    ORDEAL. 

rude  Christianity,  to  enhance  their  own  authority,  and  to 
lead  their  reluctant  flocks  to  peace  and  order  under  the  in- 
fluence of  superstition.  There  would  seem  to  be  no  doubt 
that  the  former  is  the  correct  opinion,  and  that  the  religious 
ceremonies  surrounding  the  ordeal,  as  we  find  it  judicially 
employed,  were  introduced  by  the  Church  to  Christianize 
the  Pagan  observances,  which  in  this  instance,  as  in  so 
many  others,  it  was  judged  impolitic,  if  not  impossible,  to 
eradicate.  Yarious  traces  of  such  institutions  are  faintly 
discernible  in  the  darkness  from  which  the  wild  tribes 
emerge  into  the  twilight  of  history ;  and,  as  they  had  no 
written  language,  it  is  impossible  to  ask  more.1     Thus  an 

1  There  has  heen  much  discussion  among  the  learned  as  to  whether  the 
barbarian  dialects  were  written,  and  especially  whether  the  Salique  Law  was 
reduced  to  writing  before  its  translation  into  Latin.  In  the  dearth  of  testi- 
mony, it  is  not  easy  to  arrive  at  a  positive  conclusion,  but  the  weight  of 
evidence  decidedly  inclines  to  the  negative  of  the  question.  Had  the  Sa- 
lique Law  been  written,  it  would  not  have  been  left  for  Charlemagne,  three 
hundred  years  later,  to  put  into  writing  the  heroic  poems  of  his  race,  which 
form  so  important  a  portion  of  the  literature  of  a  barbaric  and  warlike 
people.  "  Barbara  et  antiquissima  carmina,  quibus  veterum  regum  acta  et 
bella  canebantur,  et  scripsisse  et  memoriae  mandasse.  Inchoavit  et  gram- 
maticam  patriae  sermonis."  (Eginh.  Vit.  Carol.  Mag.  cap.  xxix.)  Even 
Charlemagne,  with  all  his  culture,  could  not  write,  and  when,  in  advanced 
life,  he  sought  to  learn  the  art,  it  was  too  late  (Ibid.  cap.  xxv.) — which 
shows  how  little  the  wild  Saliens  and  Ripuarians  could  have  thought  of 
converting  their  language  into  written  characters.  Charlemagne's  efforts 
accomplished  nothing,  for  though  in  842  the  contemporary  Count  Nithard 
gives  us  the  earliest  specimen  of  written  Tudesque  in  the  celebrated  oath  of 
Charles-le-Chauveat  Strasburg,  yet,  not  long  afterwards,  Otfrid,  in  the  preface 
to  his  version  of  the  Gospels,  details  the  difficulties  of  his  task  in  a  manner 
which  shows  that  it  was  without  precedent,  and  that  he  was  himself  obliged  to 
adapt  the  language  to  the  exigencies  of  writing.  Indeed,  he  asserts  positively 
that  writing  was  not  used  and  that  no  written  documents  existed,  and  he 
expresses  surprise  that  the  annals  of  the  race  should  have  been  entrusted 
exclusively  to  foreign  tongues.  "  Hujus  enim  linguae  barbaries  ut  est  inculta 
et  indisciplinabilis,  atque  insueta  capi  regulari  fraeno  grammaticae  artis,  sic 
etiam  in  multis  dictis  scriptu  est  propter  literarum  aut  congeriem  aut  incog- 
nitam  sonoritatem  difficilis.  Nam,  interdum  tria  nuu,  ut  puto,  quaerit  in 
sono,  priores  duo  consonantes,  ut  mihi  videtur,  tertium  vocali  sono  manente. 
Interdum  vero  nee  a  nee  e  nee  i  nee  u  vocalium  sonos  praecanere  potui,  ibi 


THE    BARBARIANS.  189 

anonymous  epigram  proseiTod  m  the  Grreek  Anthology 
Informs  us  of  a  singular  custom  cxi^t  Ing  in  i  he  Rhine-land, 
anterior  to  the  conrersioE  of  the  inhabitants)  by  which  the 
legitimacy  of  children  was  established  by  exposure  to  an 
rdeaJ  of  the  purest  chance, 

©apsax/ot  KfXfot  rtotaficp  %7]\rtfiovt.  €P»jicj,  x.  t.  X.1 

"  Upon  the  waters  of  the  jealous  Rhine 

The  savage  Celts  their  children  cast,  nor  own 
Themselves  as  fathers,  till  the  power  divine 

Of  the  chaste  river  shall  the  truth  make  known. 
Scarce  hreathed  its  first  faint  cry,  the  husband  tears 

Away  the  new-born  babe,  and  to  the  wave 
Commits  it  on  his  shield,  nor  for  it  cares 

Till  the  wife-judgiug  stream  the  infant  save, 

y  Gracum  mihi  videbatur  adscribi  etc.  •  .  .  Lingua  enim  haec  agrestis  habe- 
tur ;  dum  a  propriis  nee  scriptura,  nee  arte  aliqua  ullis  est  temporibus  expo- 
lita,  quippe  qui  nee  historias  suorum  antecessorum,  ut  multae  gentes  caeterae, 
commendant  memoriae,  nee  eorum  gesta  vel  vitam  ornant  dignitatis  amore. 
Quodsi  raro  contigit,  aliarum  gentium  lingua,  id  est,  Latinorum  vel  Graeco- 
rum  potius  explanant.  .  .  .  Res  mira  .  .  .  cuncta  haec  in  alien  ae  lingua?  gloriam 
transferre,  et  usiim  scriptures  in  propria  lingua  noil  Jiabere  "  (Otfrid.  Liut- 
berto  Mogunt.  in  Schilt.  Thesaur.  Antiq.  Teuton.  I.  10-11.)  Otfrid's  par- 
tiality for  his  native  tongue  is  sufficiently  proved  by  his  labors  as  a  translator, 
and  the  scope  of  his  general  learning  is  shown  by  his  references  to  Greek  and 
Hebrew,  and  his  quotations  from  the  Latin  poets,  such  as  Virgil,  Ovid,  and 
Lucan.     His  testimony  is  therefore  irreproachable. 

It  is  true  that  the  Gothic  language  was  employed  in  writing  by  Ulphilas  in 
the  fourth  century,  and  that  the  Malbergian  glosses  in  Herold:s  text  of  the 
Saliqne  law  preserve  some  fragmentary  words  of  the  ancient  Frankish 
speech.  It  is  also  true  that  on  doubtful  authority  there  has  been  high  an- 
tiquity claimed  for  the  Scandinavian  runio  letters,  but  the  balance  of  testi- 
mony is  decidedly  in  favor  of  the  opinion  that  the  Germanic  tribes  were 
innocent  of  any  rudiments  of  a  written  language. 

'  Anthol.  Lib.  ix.  Ep.  125.  This  charming  trait  of  Celtic  domestic  man- 
ners has  been  called  in  question  by  some  writers,  but  it  rests  on  good 
authority.  Claudian  evidently  alludes  to  it  as  a  well-known  fact  in  the  lines — 

"Galli 

Quos  Rhodanus  velox,  Araris  quos  tardior  ambit, 

Et  quos  nascentes  explorat  gurgite  Rhenus.'' — In  Rufinura,  Lib.  n   1.  110. 


190  THE    ORDEAL. 

And  prove  himself  the  sire.  All  trembling  lies 
The  mother,  racked  with  anguish,  knowing  well 

The  truth,  but  forced  to  risk  her  cherished  prize 
On  the  inconstant  water's  reckless  swell." 

We  learn  from  Cassiodorus  that  Theodoric,  towards  the 
close  of  the  fifth  century,  sought  to  abolish  the  battle  ordeal 
among  the  Ostrogoths,  whence  we  may  conclude  that  the 
appeal  to  the  judgment  of  God  was  an  ancestral  custom 
of  the  race.1  At  an  even  earlier  period,  the  Senchus  Mor, 
or  Irish  law,  compiled  for  the  Brehons  at  the  request  of 
St.  Patrick,  contains  unequivocal  evidence  of  the  existence 
of  the  ordeal,  in  a  provision  which  grants  a  delay  of  ten 
days  to  a  man  condemned  to  undergo  the  test  of  hot 
water.8  Equally  convincing  proof  is  found  in  the  Salique 
Law,  of  which  the  earliest  known  text  may  safely  be  as- 
sumed to  be  coeval  with  the  conversion  of  Clovis,  as  it 
contains  no  allusion  to  Christian  rules  such  as  appear  in 

1  Variarum.  Lib.  in.  Epist.  23,  24. 

a  Senchus  Mor  I.  195.  Compare  Gloss,  p.  199. — In  an  ancient  Gloss  on 
the  Senchus,  there  is  preserved  a  curious  tradition  which  illustrates  the 
belief  in  divine  interposition,  though  manifested  upon  the  judge  and  not  on 
the  culprit. 

"  However,  before  the  coming  of  Patrick  there  had  been  remarkable  reve- 
lations. When  the  Brehons  deviated  from  the  truth  of  nature,  there  appeared 
blotches  upon  their  cheeks ;  as  first  of  all  on  the  right  cheek  of  Sen  Mac  Aige, 
whenever  he  pronounced  a  false  judgment,  but  they  disappeared  again  when- 
ever he  had  pronounced  a  true  judgment,  &c. 

**  Sencha  Mac  Col  Cluin  was  not  wont  to  pass  judgment  until  he  had  pon- 
dered upon  it  in  his  breast  the  night  before.  When  Fachtna,  his  son,  had 
passed  a  false  judgment,  if  in  the  time  of  fruit,  all  the  fruit  in  the  territory 
in  which  it  happened  fell  off  in  one  night,  Ac. ;  if  in  time  of  milk,  the  cows 
refused  their  calves  ;  but  if  he  passed  a  true  judgment,  the  fruit  was  perfect 
on  the  trees ;  hence  he  received  the  name  of  Fachtna  Tulbrethach. 

"  Sencha  Mac  Aillila  never  pronounced  a  false  judgment  without  getting 
three  permanent  blotches  on  his  face  for  each  judgment.  Fithel  had  the 
truth  of  nature,  so  that  he  pronounced  no  false  judgment.  Morann  never 
pronounced  a  judgment  without  having  a  chain  around  his  neck.  When  he 
pronounced  a  false  judgment,  the  chain  tightened  around  his  neck.  If  he 
pronounced  a  true  one,  it  expanded  down  upon  him." — Ibid.  p.  25. 


Til  |     B  A  B  It  A  RI  ANS.  191 

revisions  made  somewhat  later.  In  this  text,  the  ordeal  of 
boiling  water  finds  its  place  as  a  judicial  process  in  regular 
use.  as  fully  as  in  the  subsequent  revisions  of  the  code.1 
In  the  Decree  of  Tassilo,  Duke  of  the  Baioarians,  issued 
in  7T2,  there  is  a  reference  to  a  pre-existing  custom,  named 
Stapfsaken^  used  in  cases  of  disputed  debt,  which  is  de- 
nounced as  a  relic  of  Pagan  rites, — "  in  verbis  quibus  ex 
vet  usta  consuetudine  paganorum,  idolatriam  reperimus," — 
and  which  is  there  altered  to  suit  the  new  order  of  ideas, 
affording  an  instructive  example  of  the  process  to  which 
1  have  alluded.  It  is  evidently  a  kind  of  ordeal,  as  is 
manifested  by  the  expression,  "Let  us  stretch  forth  our 
right  hands  to  the  just  judgment  of  God."a  These  proofs 
would  seem  amply  sufficient  to  demonstrate  the  existence 
of  the  practice  as  a  primitive  custom  of  some  of  the  Barba- 
rian races,  prior  to  their  occupation  of  the  Roman  empire. 
If  more  be  required,  it  must  be  remembered  that  the  records 
of  those  wild  tribes  do  not  extend  beyond  the  period  of 
their  permanent  settlement,  when  baptism  and  civilization 
fere  received  together,  so  that  we  cannot  reasonably  ask 
for  codes  and  annals  at  a  time  when  each  sept  was  rather 
a  tumultuous  horde  of  freebooters  than  a  people  living 
under  a  settled  form  of  organized  society.  Tacitus,  it  is 
true,  makes  no  mention  of  anything  approaching  nearer 
to  the  Judgment  of  God  than  the  various  forms  of  rude 
divination  common  to  all  superstitious  savages.  It  is 
highly  probable  that  to  many  tribes  the  ordeal  was  un- 
known, and  that  it  had  nowhere  assumed  the  authority 
which  it  afterwards  acquired,  when  the  Church  found  in 
it  a  powerful  instrument  to  enforce  her  authority,  and  to 
acquire  influence  over  the  rugged  nature  of  her  indocile 
converts.3    Indeed,  we  have  evidence  that  in  some  cases  it 

1  Tit.  liii.  lvi.     (First  Text  of  Pardessus.) 

3  "  Extendamus  dextera  nostra  ad  justum  judicium  Dei." — Decret.  Tassi- 
lonis  Tit.  ii.  §  7. 

3  Thus,  in  the  laws  of  St.  Stephen,  King  of  Hungary,  promulgated  soon 


192  THE    ORDEAL. 

was  introduced,  and  its  employment  enforced,  for  the  pur- 
pose of  eradicating  earlier  Pagan  observances ;  as,  for 
instance,  when  Bishop  Geroldus,  about  the  middle  of  the 
twelfth  century,  converted  the  Sclavonians  of  Mecklem- 
burg.1 

Be  this  as  it  may,  the  custom  was  not  long  in  extending 
itself  throughout  Europe.  The  laws  of  the  Salien  Franks 
we  have  already  alluded  to,  and  the  annals  of  Gregory  of 
Tours  and  of  Fredegarius,  the  Merovingian  Capitularies, 
and  the  various  collections  of  Formularies,  show  that  it 
was  not  merely  a  theoretical  prescription,  but  an  every-day 
practice  among  them.  The  Ripuarian  Franks  were  some- 
what more  cautious,  and  the  few  references  to  its  employ- 
ment which  occur  in  their  code  would  seem  to  confine  its 
application  to  slaves  and  strangers.8  The  code  of  the  Ala- 
manni  makes  no  allusion  to  any  form  except  that  of  the 
"tracta  spata,"  or  judicial  duel.  The  code  of  the  Baioa- 
rians,  in  its  original  shape,  while  referring  constantly  to  the 
combat,  seems  ignorant  of  any  other  mode.  The  supple- 
mentary Decree  of  Tassilo,  however,  affords  an  instance, 
quoted  above,  and  another  which  seems  to  show  that  force 
was  sometimes  necessary  to  carry  out  the  decision  to  em- 
ploy it.3  The  Wisigoths,  who,  like  their  kinsmen  the  Ostro- 
goths, immediately  on  their  settlement  adapted  themselves 
in  a  great  degree  to  Roman  laws  and  customs,  for  nearly 
two  centuries  had  no  allusion  in  their  body  of  laws  to  any 
form  of  ordeal.     It  was  not  until  693,  long  after  the  destruc- 

after  his  conversion,  in  1016,  there  is  no  allusion  to  the  ordeal,  while  in 
those  of  King  Coloman,  issued  about  a  century  later,  it  is  freely  directed  as 
a  means  of  legal  proof. 

1  "Et  vetavit  Comes  ne  Sclavi  de  cetero  jurarent  in  arboribus,  fontibus, 
et  lapidibus  ;  sed  offerrent  crirainibus  pulsatos  sacerdoti,  ferro  ac  vomeribus 
examinandos." — Anon.  Chron.  Sclavic.  cap.  xxv.  (Script.  Iter.  German. 
Septent.  Lindenbrog.  p.  215.) 

■  L.  Ripuar.  Tit.  xxx.  §§  1,  2;  Tit.  xxxi.  §  5. 

3  "  Ut liberi ad  eadem  cogantur  judicia  quae  Baioarii 

TJrtella  dicunt." — Decret.  Tassilon.  Tit.  ii.  §  9. 


THE    BARBARIANS.  193 

tion  of  their  independence  in  the  South  of  France,  and  but 
little  prior  to  their  overthrow  in  Spain  by  the  Saracens, 
that  their  king,  Bgiza,  with  the  sanction  of  the  Council  of 
Toledo,  issued  an  edict  commanding  the  employment  of  t  In* 

teneum,  or  ordeal  of  boiling  water.  The  expressions  of  the 
law,  however,  warrant  the  conclusion,  that  this  was  only 
the  extension  of  a  custom  previously  existing,  by  removing 
the  restrictions  whichhad  prevented  its  application  to  all 
questions,  irrespective  of  their  importance.1  The  Burgun- 
dian  code  refers  more  particularly  to  the  duel,  which  was 
the  favorite  form  of  ordeal  with  that  race,  but  from  the 
writings  of  St.  Agobard  we  may  safety  assume  that  the 
trials  by  hot  water  and  by  iron  were  in  frequent  use.  The 
primitive  Saxon  jurisprudence  also  prefers  the  battle  ordeal ; 
but  the  other  kinds  are  met  with  in  the  codes  of  the  Frisians3 
and  of  the  Thuringians.3  The  earliest  Lombard  law,  as 
compiled  by  Rotharis,  refers  only  to  the  wager  of  battle ; 
but  the  additions  of  Liutprand,  made  in  the  eighth  centuiy, 
allude  to  the  employment  of  the  hot-water  ordeal  .as  a 
recognized  procedure.4  In  England,  the  Britons  appear  to 
have  regarded  the  ordeal  with  much  favor,  as  a  treaty 
between  the  Welsh  and  the  Saxons,  about  the  year  1000, 
provides  that  all  questions  between  individuals  of  the  two 
races  should  be  settled  in  this  manner,  in  the  absence  of  a 
special  agreement  between  the  parties.5  The  Anglo-Saxons 
seem  to  have  been  somewhat  late  in  adopting  it ;  for  the 

1  "Multas  cognovimus  querelas,  et  ab  ingenuis  multamala  pati,  credentes 
in  ccc.  solidis  quajstionem  agitari.  Quod  nos  modo  per  salubrem  ordina- 
tionera  censemus,  ut  quamvis  parva  sit  actio  rei  facti  ab  aliquocriminis,  eum 
per  examinationem  aquae  ferventis  a  judice  distringendum  ordinamus." — L. 
Wisigoth.  Lib.  vi.  Tit.  i.  §  3. 

2  L.  Frision.  Tit.  iii.  §§  4,  5,  6. 

3  L.  Anglior.  et  Werinor.  Tit.  xiv. 

4  L.  Longobard.  Lib.  I.  Tit.  xxxiii.  §  1. 

*  "Non  sit  alia  lada  (t.  e.  purgatio)  de  tyhla  (i.  e.  compellatione)  nisi  orda- 
liuni,  inter  Walos  et  Anglos." — Senatus-Oonsult.  de  Monticolis  Waliae  cap. 
ii. 

17 


194  THE    ORDEAL. 

dooms  of  the  earlier  princes  refer  exclusively  to  the  refuta- 
tion of  accusations  by  oath  with  compurgators,  and  we 
find  no  allusion  made  to  the  ordeal  until  the  time  of  Ed- 
ward the  Elder,  at  the  commencement  of  the  tenth  century, 
that  allusion,  however,  being  of  a  nature  to  show  that  it 
was  then  a  settled  custom,  and  not  an  innovation.1  Among 
the  northern  races  it  was  probably  indigenous,  the  earliest 
records  of  Iceland,  Denmark,  and  ^Sweden  exhibiting  its 
vigorous  existence  at  a  period  anterior  to  their  conversion 
to  Christianity  ;a  and  the  same  may  be  said  of  the  Scla- 
vonic tribes  in  Eastern  Europe.  In  Bohemia,  the  laws  of 
Brzetislas,  promulgated  in  1039,  make  no  allusion  to  any 
other  form  of  evidence  in  contested  cases,3  while  it  was 
likewise  in  force  to  the  farthest  confines  of  Russia.4  The 
Majjars  placed  equal  reliance  on  this  mode  of  proof,  as  is 
shown  by  the  statutes  of  King  Ladislas  and  Coloman, 
towards  the  end  of  the  eleventh  century,  which  allude  to 
various  forms  of  ordeal  as  in  common  use.5  Scotland  like- 
wise employed  it  in  her  jurisprudence,  as  developed  in  the 
code  known  as  "  Regiam  Majestatem  Scotise,"  attributed 
to  David  I.,  in  the  first  half  of  the  twelfth  century.6  Even 
the  Byzantine  civilization  became  contaminated  with  the 
prevailing  custom,  and  various  instances  of  its  use  are 
related  by  the  historians  of  the  Lower  Empire,  to  a  period 
as  late  as  the  middle  of  the  fourteenth  century. 

One  cause  of  the  general  prevalence  of  the  ordeal  among 
the  barbarian  tribes  settled  in  the  Roman  provinces  may 
perhaps  be  traced  to  the  custom,  which  prevailed  univer- 
sally, of  allowing  all  races  to  retain  their  own  jurispru- 

1  Dooms  of  King  Edward,  cap.  iii. ;  Laws  of  Edward  and  Guthrum,  cap.  ix. 
3  Saxo.  Grammat.  Hist.   Danic.  Lib.  v. ;    Widukindi  Lib.  ill.  c.  65. — 
Gragas,  Sect.  vi.  c.  55. 

3  Similiter  de  his  qui  homicidiis  infamantur  ....  si  negant,  ignito  ferro 
sive  adjurata  aqua  examinentur. — Annalista  Saxo,  ann.  1039. 

4  Konigswarter,  op.  cit.  pp.  211,  224. 

8  Batthyani  Legg.  Eccles.  Hung.  T.  L,  p.  439,  454. 
0  For  instance,  Lib.  iv.  cap.  iii.  §  4. 


PURGATORIAL    <>ATIIS.  Lftfl 

dence,  however  socially  Intermingled  the  Individuals  might 
be*  The  confusion  thus  produced  is  well  set  forth  by  St. 
Agobanl.  when  lie  remarks  that  frequently  five  men  shall 
be  in  close  companionship,  each  owning  obedience  to  a 
different  law.1  He  further  states,  that,  under  the  Bur<z;iin- 
dian  rules  of  procedure,  no  one  was  admitted  to  bear  wit- 
ness against  a  man  of  different  race  ;8  so  that  in  a  large 
proportion  of  cases  there  could  be  no  legal  evidence  attain- 
able, and  recourse  was  had  of  necessity  to  the  judgment  of 
God.  No  doubt  a  similar  tendency  existed  generally,  and 
the  man  who  appealed  to  Heaven  against  the  positive  testi- 
mony of  witnesses  of  different  origin,  would  be  very  apt  to 
find  the  court  disposed  to  grant  his  request. 

During  the  full  fervor  of  the  belief  that  the  Divine  inter- 
position could  at  all  times  be  had  for  the  asking,  almost 
any  form  of  procedure,  conducted  under  priestly  obser- 
vances, could  assume  the  position  and  influence  of  an 
ordeal.  As  early  as  592,  we  find  Gregory  the  Great  allud- 
ing to  a  simple  purgatorial  oath,  taken  by  a  Bishop  on 
the  relics  of  St.  Peter,  in  terms  which  convey  evidently 
the  idea  that  the  accused,  if  guilty,  had  exposed  himself  to 
imminent  danger,  and  that  by  performing  the  ceremony 
unharmed  he  had  sufficiently  proved  his  innocence."  But 
such  unsubstantial  refinements  were  not  sufficient  for  the 
vulgar,  who  craved  the  evidence  of  their  senses,  and 
desired  material  proof  to  rebut  material  accusations.  In 
ordinary  practice,  therefore,  the  principal  modes  by  which 
the  will  of  Heaven  was  ascertained  were  the  ordeal  of  fire, 

1  "Nam  plerunque  contingit  ut  simul  eant  aut  sedeant  quinque  homines, 
et  nullus  eorum  communem  legem  cum  altero  habeat." — Lib.  adv.  Legem 
Gundobadi,  cap.  iv. 

3  "Ex  qua  re  oritur  res  valde  absurda,  ut  si  aliquis  eorum  in  coetu  populi, 
aut  etiam  in  mercato  publico  commiserat  aliquam  pravitatem,  non  coar- 
guatur  testibus." — Ibid.  cap.  vi. 

3  "Quibus  (sacramentis)  praestitis,  magna  sumus  exultatione  gavisi,  quod 
hujuscemodi  experimento  innocentia  ejus  evidenter  enituit." — Can.  Ilabet 
hoc  proprium,  caus.  n.  quajst.  5. 


196  THE    ORDEAL. 

whether  administered  directly,  or  through  the  agency  of 
boiling  water  or  red-hot  iron ;  that  of  cold  water ;  of  bread 
or  cheese ;  of  the  Eucharist ;  of  the  cross  ;  the  lot ;  and  the 
touching  of  the  body  of  the  victim  in  cases  of  murder. 
Some  of  these,  it  will  be  seen,  required  a  miraculous  inter- 
position to  save  the  accused,  others  to  condemn;  some 
depended  altogether  on  volition,  others  on  the  purest 
chance ;  while  others,  again,  derived  their  power  from  the 
influence  exerted  on  the  mind  of  the  patient.  They  were 
all  accompanied  with  solemn  religious  observances,  and 
the  most  impressive  ceremonies  of  the  Church  were  lavishly 
employed  to  give  authority  to  the  resultant  decisions,  and 
to  impress  on  the  minds  of  all  the  directness  of  the  inter- 
ference which  was  expected  from  the  Creator. 

The  ordeal  of  boiling  water  (aeneum,  judicium  aquae  fer- 
ventis,  cacabus,  caldaria)  is  probably  the  oldest  form  in 
which  the  application  of  fire  was  judicially  administered  in 
Europe  as  a  mode  of  proof.  It  is  the  one  usually  referred 
to  in  the  most  ancient  texts  of  laws,  and  its  universal 
adoption  denotes  a  very  high  antiquity.  It  is  particularly 
recommended  by  Hincmar  as  combining  the  elements  of 
water  and  of  fire:  the  one  representing  the  deluge — the 
judgment  inflicted  on  the  wicked  of  old ;  the  other  author- 
ized by  the  fiery  doom  of  the  future — the  day  of  judgment.1 
A  caldron  of  water  was  brought  to  the  boiling  point,  and 
the  accused  was  obliged  wfth  his  naked  hand  to  find  a 
small  stone  or  ring  thrown  into  it ;  ( sometimes  the  latter 
portion  was  omitted,  and  the  hand  was  simply  inserted,  in 
trivial  cases  to  the  wrist,  in  crimes  of  magnitude  to  the 
elbow,  the  former  being  termed  the  single,  the  latter  the 

1  Quapropter  fieri  aquam  ignitam  ad  haec  duocopulata  in  unura  indaganda 
judicia,  illud  videlicet  quod  jam  per  aquam  factum  est,  et  illud  quod  per 
ignem  fiendum  est  ....  in  quibus  sancti  liberantur  illoesi,  et  reprobi  puni- 
entur  addicti. — Hincmar  de  Divort.  Lothar.  Interrog.  vi. 


OR  PEAL    OF     UOTLTNO     WATER.  107 

triple  ordeal ;'  or,  again,  the  stone  wm  employed,  suspended 
i>v  a  string,  and  the  severity  of  the  ferial  was  regnlated 

by  the  Length  of  the   line,  a  palm's  breadth    being  counted 

as  single,  and  the  distance  to  the  elbow  as  triple.9  A  good 
example  of  the  process,  in  all  its  details,  is  furnished  us  by 
Gregory  <>f  'Pours,  who  relates  that,  an  Arian  priest  and 
a  OathoBe  deacon  disputing  about  their  respective  tenets, 
and  being  unable  to  convince  each  other,  the  latter  pro- 
posed to  refer  the  subject  to  the  decision  of  the  seneum^ 
and  the  offer  was  accepted.  Next  morning  the  deacon's 
enthusiasm  cooled,  and  he  mingled  his  matins  with  precau- 
tions of  a  less  spiritual  nature,  by  bathing  his  arm  in  oil, 
and  anointing  it  with  protective  unguents.  The  populace 
assembled  to  witness  the  exhibition,  the  fire  was  lighted, 
the  caldron  boiled  furiously,  and  a  little  ring  thrown  into 
it  was  whirled  round  like  a  straw  in  a  tornado,  when  the 
deacon  politely  invited  his  adversary  to  make  the  trial  first. 
This  was  declined,  on  the  ground  that  precedence  belonged 
to  the  challenger,  and  with  no  little  misgiving  the  deacon 
proceeded  to  roll  up  his  sleeve,  when  the  Arian,  observing 
the  precautions  that  had  been  taken,  exclaimed  that  he  had 
been  using  magic  arts,  and  that  the  trial  would  amount  to 
nothing.  At  this  critical  juncture,  when  the  honor  of  the 
Orthodox  faith  was  trembling  in  the  balance,  a  stranger 
stepped  forward — a  Catholic  priest  named  Jacintus,  from 
Ravenna — and  offered  to  undergo  the  experiment.  Plung- 
ing his  arm  into  the  bubbling  caldron,  he  was  two  hours 
in  capturing  the  ring,  which  eluded  his  grasp  in  its 
fantastic  gyrations ;  but  finally,  holding  it  up  in  triumph 
to  the  admiring  spectators,  he  declared  that  the  water  felt 
cold  at  the  bottom,  with  an  agreeable  warmth  at  the  top. 
Fired  by  the  example,  the  unhappy  Arian  boldly  thrust 
in  his  arm ;  but  the  falseness  of  his  cause  belied  the  confi- 

1  Dooms  of  King  JEthelstan,  iv.  cap.  7. 

3  Adjuratio  ferri  vel  aqua?  ferventis  (Baluz.  II.  655) 

17* 


X 


198  THE    ORDEAL. 

dence  of  its  rash  supporter,  and  in  a  moment  the  flesh  was 
boiled  off  the  bones  up  to  the  elbow.1 

This  was  a  volunteer  experiment.  As  a  means  of  judicial 
investigation,  the  process  was  surrounded  with  all  the  solem- 
nity which  the  most  venerated  rites  of  the  Church  could 
impart.  Fasting  and  pra}^er  were  enjoined  for  three  days 
previous,  and  the  ceremony  commenced  with  special  prayers 
and  adjurations,  introduced  for  the  purpose  into  the  litany, 
and  recited  by  the  officiating  priests ;  mass  was  celebrated, 
and  the  accused  was  required  to  partake  of  the  sacrament 
under  the  fearful  adjuration,  "This  body  and  blood  of  our 
Lord  Jesus  Christ  be  to  thee  this  day  a  manifestation!" 
This  was  followed  by  an  exorcism  of  the  water,  of  which 
numerous  formulas  are  on  record,  varying  in  detail,  but  all 
presenting  the  quaintest  superstition  mingled  with  the  most 
audacious  presumption,  as  though  all  the  powers  of  the 
Creator  were  intrusted  to  his  servant,  the  whole  furnishing 
a  vivid  picture  of  robust  faith  and  self-confident  ignorance. 
A  single  specimen  will  suffice. 

"  0  creature  of  water,  I  adjure  thee  by  the  living  God,  by  the  holy 
God  who  in  the  beginning  separated  thee  from  the  dry  land  ;  I  adjure 
thee  by  the  living  God  who  led  thee  from  the  fountain  of  Paradise, 
and  in  four  rivers  commanded  thee  to  encompass  the  world  ;  I  adjure 
thee  by  Him  who  in  Cana  of  Galilee  by  His  will  changed  thee  to 
wine,  who  trod  on  thee  with  His  holy  feet,  who  gave  thee  the  name 
Siloa ;  I  adjure  thee  by  the  God  who  in  thee  cleansed  Naaman,  the 
Syrian,  of  his  leprosy ; — Saying,  0  holy  water,  0  blessed  water,  water 
which  washest  the  dust  and  sins  of  the  world,  I  adjure  thee  by  the 
living  God  that  thou  shalt  show  thyself  pure,  nor  retain  any  false 
image,  but  shalt  be  exorcised  water,  to  make  manifest  and  reveal  and 
bring  to  naught  all  falsehood,  and  to  make  manifest  and  bring  to  light 
all  truth ;  so  that  he  who  shall  place  his  hand  in  thee,  if  his  cause  be 
just  and  true,  shall  receive  no  hurt ;  but  if  he  be  perjured,  let  his 
hand  be  burned  with  fire,  that  all  men  may  know  the  power  of  our 

1  De  Gloria  Martyrum  Lib.  i.  cap.  81. — Injecta  mami,  protinus  usque  ad 
ipsa  ossium  intern  odia  caro  liquefacta  defluxit. 


ORDEAL    OP    HOT    WATIB.  199 

Lord  Jesm  Christ,  who  will  como,  with  Um  Holy  (!liost,  to  judge  with 
tiif  the  <iui<k  and  the  (load,  and  the  world  !    Ament"! 

After  the  experiment  had  taken  place,  the  hand  was 
carefully  enveloped  in  a  cloth,  sealed  with  the  signet  of  the 
judge,  and  three  days  afterwards  it  was  unwrapped,  when 

the  guilt  <>r  innocence  of  the  party  was  announced  by  the 
condition  of  the  member.9 

The  justification  of  this  mode  of  procedure  by  its  most 
able  defender,  Hincmar,  Archbishop  of  Kheims,  is  similar 
in  spirit  to  this  form  of  adjuration.  King  Lothair,  great- 
grandson  of  Charlemagne,  desiring  to  get  rid  of  his  wile, 
Teutberga,  accused  her  of  the  foulest  incest,  and  forced 
her  to  a  confession,  which  she  afterwards  recanted,  prov- 
ing her  innocence  by  undergoing  the  ordeal  of  hot  water 
l>v  proxy.  Lothair,  nevertheless,  married  his  concubine, 
Waldrada,  and  for  ten  years  the  whole  of  Europe  was  oc- 
cupied with  the  disgusting  details  of  the  quarrel,  council 
after  council  assembling  to  consider  the  subject,  and  the 
thunders  of  Rome  being  freely  employed.  Hincmar,  the 
most  conspicuous  ecclesiastic  of  his  day,  stood  boldly  forth 
in  defence  of  the  unhappy  queen,  and  in  his  treatise  "  De 
Divortio  Lotharii  et  Teutbergae,"  he  was  led  to  justify  the 
use  of  ordeals  of  all  kinds.  The  species  of  reasoning  which 
was  deemed  conclusive  in  the  ninth  century  may  be  appre- 
ciated from  his  arguments  in  favor  of  the  aeneum,  "  Be- 
cause in  boiling  water  the  guilty  are  scalded  and  the  inno- 
cent are  unhurt,  because  Lot  escaped  unharmed  from  the 
fire  of  Sodom,  and  the  future  fire  which  "will  precede  the 
terrible  Judge  will  be  harmless  to  the  Saints,  and  will 
burn  the  wicked  as  in  the  Babylonian  furnace  of  old."J 

1  Formulae  Exorcismoruin,  Baluz.  II.  639  sqq.  Various  other  formu- 
las are  given  by  Baluze,  Spelman,  Muratori,  and  other  collectors,  all  mani- 
festing the  same  unconscious  irreverence. 

3  Doom  concerning  hot  iron  and  water  (Laws  of  iEthelstan,  Thorpe,  I. 
226)  ;   Baluze,  II.  644. 

3  "Quia  in  aqua  ignita  coquuntur  culpabiles  et  innoxii  liberantur  incocti, 
quia  de  igne  Sodomitico  Lot  Justus  evasit  iuuotus,  et  futurus  ignis  qui  pnei« 


") 


200  TIIE    ORDEAL. 

Iii  the  Life  of  St.  Athelwold  is  recorded  a  miracle,  which, 
though  not  judicial,  yet,  from  its  description  by  a  contem- 
porary, affords  an  insight  into  the  credulous  faith  which 
intrusted  the  most  important  interests  to  decisions  of  this 
nature.  The  holy  saint,  while  Abbot  of  Abingdon,  to  test 
the  obedience  of  Elfstan  the  cook  of  the  Monastery,  ordered 
him  to  extract  with  his  hand  a  piece  of  meat  from  the  bot- 
tom of  a  caldron  in  which  the  conventual  dinner  was  boil- 
ing. Without  hesitation,  the  monk  plunged  his  hand  into 
the  seething  mass  and  unhurt  presented  the  desired  morsel 
to  his  wondering  superior.  Faith  such  as  this  could  not 
go  unrewarded,  and  Elfstan,  from  his  humble  station,  rose 
to  the  Episcopal  seat  of  Winchester.1 

This  form  of  trial  was  in  use  among  all  the  races  in 
whose  legislation  the  purgatio  vulgaris  found  place.  It  is 
the  011I3'  mode  alluded  to  in  the  Salique  Law,  from  the 
primitive  text  to  the  amended  code  of  Charlemagne.2  The 
same  may  be  said  of  the  Wisigoths,  as  we  have  already 
seen ;  while  the  codes  of  the  Frisians,  the  Anglo-Saxons, 
and  the  Lombards,  all  refer  cases  to  its  decision.3  In  Ice- 
land, it  was  employed  from  the  earliest  times,4  and  it  con- 
tinued in  vogue  throughout  Europe  until  the  general 
discredit  attached  to  this  mode  of  judgment  led  to  the 
gradual  abandonment  of  the  ordeal  as  a  legal  process.  It 
is  among  the  forms  enumerated  in  the  sweeping  condemna- 
tion of  the  whole  system,  in  1215,  by  Innocent  III.  in  the 
Fourth  Council  of  Lateran ;  but  even  subsequently  we  find 
it  prescribed  in  certain  cases  by  the  municipal  laws  in  force 

bit  terribilem  judicem,  Sanctis  erit  innocuus  et  scelestos  aduret,  ut  olim 
Babylonica  fornax,  quaa  pueros  omnino  non  contigit." — Interrog.  vi. 

1  Vit.  S.  Athelwoldi  c.  x.  (Chron.  Abingd.  II.  259.) 

"'  First  Text  of  Pardessus,  Tit.  liii.,  lvi. ;  MS.  Guelferbyt.  Tit.  xiv  ,  xvi.  ; 
L.  Emend.  Tit.  lv.,  lix. 

3  L.  Frision.  Tit.  iii.;  L.  ^thelredi  iv.  §6;  L.  Lombard.  Lib.  1.  Tit. 
xxxiii.  §  1. 

*  Gragds,  Sect.  vi.  cap.  55. 


ORDEAL    OP    RED-HOT    IRON.  201 

throughout  the  whole  of  Northern  Bad  Southern  Germany,1 
and  as  Late  as  L 282  it  la  specified  in  a  charter  of  Gaston 
of  E&arn,  conferring  <>n  a  ehoroh  the  privilege  of  holding 

ordeals.8  At  a  later  date,  indeed,  it  was  sometimes  admin-; 
istiivd  iu  a  different  and  more  serious  form,  the  accused 
being  expected  to  swallow  the  boiling  water.  I  have 
nut  with  no  instances  recorded  of  this,  but  repealed  allu- 
sions to  it  by  Kiekius  show  that  it  could  not  have  been 
unusual.3 

The  modern  Hindoo  variety  of  this  ordeal  consists  in 
casting  a  piece  of  gold  into  a  vessel  of  boiling  ghee  or 
sesame  oil,  of  a  specified  size  and  depth.  If  the  person  to 
be  tried  can  extract  it  between  his  finger  and  thumb,  with- 
out scalding  himself,  he  is  pronounced  victorious.4 

The  trial  by  red-hot  iron  {judicium  ferri,  juise)  was  in 
use  from  a  very  early  period,  and  became  one  of  the  favorite 
modes  of  determining  disputed  questions.  It  was  admin- 
istered in  two  essentially  different  forms.  The  one  (vomeres 
igniti,  examen  pedale)  consisted  in  laying  on  the  ground  at 
certain  distances  six,  nine,  or  in  some  cases  twelve,  red-hot 
ploughshares,  among  which  the  accused  walked  barefooted, 
sometimes  blindfolded,  when  it  became  an  ordeal  of  pure 
chance,  and  sometimes  compelled  to  press  each  iron  with 
his  naked  feet.5  The  other  and  more  usual  form  obliged 
the  patient  to  carry  in  his  hand  for  a  certain  distance, 
usually  nine  feet,  a  piece  of  red-hot  iron,  the  weight   of 

'  Jur.  Prov.  Saxon.  Lib.   i.  Art.  39 ;   Jur.  Provin.   Alaman.  cap.  xxxvii. 
$§  15,  16. 
2  Du  Cange.  3  Defens.  Probse  Aquae  Frigid.  $§  167,  169,  &o. 

*  Ayeen  Akbery,  II.  498.  This  work  was  written  about  the  year  1600  by 
Abulfazel,  vizier  of  the  Emperor  Akbar.  Gladwin's  Translation  was  pub- 
lished under  the  auspices  of  the  East  India  Company  in  1800. 

*  "  Si  titubaverit,  si  singulos  vomeres  pleno  pedenon  presserit,  si  quantu- 
lumcunque  laesa  fuerit,  sententia  proferatur. " — Annal.  Winton.  Eccles. 
(Du  Cange,  s.  v.  Vomeres  )  Six  is  the  number  of  ploughshares  specified  in 
the  celebrated  trial  of  St.  Cunigunda,  wife  of  the  Emperor  St.  Henry  II. — 
Mag.  Chron.  Belgic. 


202  THE    ORDEAL. 

which  was  determined  by  law  and  varied  with  the  impor- 
tance of  the  question  at  issue  or  the  magnitude  of  the 
alleged  crime.1  The  hand  was  then  wrapped  up  and  sealed, 
and  three  days  afterwards  the  decision  was  rendered  in 
accordance  with  its  condition.2  These  proceedings  were 
accompanied  by  the  same  solemn  observances  which  have 
been  already  described,  the  iron  itself  was  duly  exorcised, 
and  the  intervention  of  God  was  invoked  in  the  name  of 
all  the  manifestations  of  Divine  clemency  or  wrath  by  the 
agency  of  fire — Shadrach,  Meshach,  and  Abednego,  the 
burning  bush  of  Horeb,  the  destruction  of  Sodom,  and  the 
day  of  judgment.3 

So,  in  the  form  ordinarily  in  use  throughout  modern 
India,  the  patient  bathes  and  performs  certain  religious 
ceremonies.  After  rubbing  his  hands  with  rice  bran,  seven 
green  Peepul  leaves  are  placed  on  the  extended  palms  and 

1  Thus,  among  the  Anglo-Saxons,  in  the  "  simple  ordeal"  the  iron  weighed 
one  pound,  in  the  "  triple  ordeal"  three  pounds.  The  latter  is  prescribed 
for  incendiaries  and  "  morth-slayers"  (secret  murderers),  ^thelstan,  iv.  §  6  ; 
— for  false  coining,  Ethelred,  iii.  §  7; — for  plotting  against  the  king's  life, 
Ethelred,  v.  §  30,  and  Cnut,  Secular.  §  58 — while  at  a  later  period,  in  the 
collection  known  as  the  Laws  of  Henry  I.,  we  find  it  extended  to  cases  of 
theft,  robbery,  arson,  and  felonies  in  general,  Cap.  lxvi.  §  9.  In  Spain,  the 
iron  had  no  definite  weight,  but  was  a  palm  and  two  fingers  in  length,  with 
four  feet  high  enough  to  enable  the  criminal  to  lift  it  conveniently  (Fuero 
de  Baeca,  ap.  Villadiego,  Fuero  Juzgo,  fol.  317«).  The  episcopal  benedic- 
tion was  necessary  to  consecrate  the  iron  to  its  judicial  use.  A  charter  of 
1082  shows  that  the  Abbey  of  Fontanelle  in  Normandy  had  one  of  approved 
sanctity,  which,  through  the  ignorance  of  a  monk,  was  applied  to  other  pur- 
poses. The  Abbot  thereupon  asked  the  Archbishop  of  Rouen  to  consecrate 
another,  and  before  he  would  consent,  the  institution  had  to  prove  its  right 
to  administer  the  ordeal. — Du  Cange,  s.  v.,  Ferr?im  candens. 

3  Laws  of  iEthelstan,  iv.  §  7. — Adjuratio  ferri  vel  aquae  ferventis,  Baluz. 
II.  656. — Fuero  de  Baeca  (ubi  sup.) — Even  in  this  minute  particular  we  see 
the  mysterious  connection  between  the  superstitions  of  Europe  and  those  of 
India.  In  Malabar,  the  ordeal  of  red-hot  iron  was  followed  by  a  similar 
ceremony ;  the  hand  was  wrapped  up  with  linen  soaked  in  rice-water,  sealed 
by  the  king,  and  opened  three  days  afterward  for  examination.  (Collin  de 
Plancy,  op.  cit.  228.) 

s  For  instance,  see  various  forms  of  exorcism  given  by  Baluze,  II.  651-654. 
Also  Dom  Gerbert  (Patrologiae,  T.  138,  p.  1127.) 


ORDEAL     Off     RED- HOT    I  HON.  203 

bound  round  seven  times  with  raw  silk.  A  red-hot  iron  of 
a  certain  weight  is  then  placed  on  his  hands.  :ind  with 
this  he  has  to  walk  across  seven  eoneentrie  eireles,  each 
with  a  radius  sixteen    fingers'  hrcadth    Larger  than  the   pre- 

eeding.  [f  this  be  accomplished  without  burning  the  hands, 
he  gains  his  cause.1 

Ill  the  earlier  periods,  the  burning  iron  was  reserved  for 
eases  of  peculiar  atrocity.  Thus  we  find  it  prescribed  by 
Charlemagne  in  accusations  of  parricide;8  the  Council  of 
Kishach  in  799  directed  its  use  in  cases  of  sorcery  and 
witchcraft;3  and  among-  the  Thuringians  it  was  ordered  for 
women  suspected  of  poisoning  or  otherwise  murdering 
their  husbands,4  a  crime  visited  with  peculiar  severity  in 
almost  all  codes.  Subsequently,  however,  it  became  rat  her 
an  aristocratic  procedure,  as  contradistinguished  from 
the  water  ordeals.  This  nevertheless  was  not  universal, 
for  both  kinds  were  employed  indiscriminately  by  the 
Anglo-Saxons,5  and  at  a  later  period  throughout  Germany  ;(i 
while  in  the  Assises  de  Jerusalem  the  hot  iron  is  the  only 
form  alluded  to  as  emplo3*ed  in  the  roturier  courts;7  in  the 
laws  of  Nieuport,  granted  by  Philip  of  Alsace  in  1163  it  is 
prescribed  as  a  plebeian  ordeal  ;8  about  the  same  period,  in 
the  military  laws  enacted  by  Frederic  Barbarossa  during  his 
second  Italian  expedition,  it  appears  as  a  servile  ordeal,9 
and  as  early  as  888  the  Council  of  Mainz  indicates  it  espe- 

1  Ayeen  Akbery,  II.  497. 

9  Capit.  Carol.  Mag.  n.  Ann.  803,  cap.  5. 

a  Concil.  Risbach.  can.  ix.  (Hartzheim  Concil.  German.  II.  692.) 

4  L.  Anglior.  et  Werinor.  Tit.  xiv. 

*  Laws  of  jEthelred,  iv.  §  6 — where  the  accuser  had  the  right  to  select  the 
mode  in  which  the  ordeal  should  be  administered. 

c  The  Jus  Provin.  Alaman.  (Cap.  xxxvii.  §§  15,  16;  Cap.  clxxxvi.  §§  4, 
6,  7  ;  Cap.  ccclxxiv.)  allows  thieves  and  other  malefactors  to  select  the  ordeal 
they  prefer.  The  Jus  Provin.  Saxon.  (Lib.  i.  Art.  39)  affords  them  in  ad- 
dition the  privilege  of  the  duel. 

1  Baisse  Court,  Cap.  132,  261,  279,  280,  etc. 

8  Lesbroussart's  Oudegherst,  II.  707. 

9  Radevic.  de  Ileb.  Frid.  Lib.  I.  cap.  xxvi. 


204  THE    ORDEAL. 

cially  for  slaves.1  Notwithstanding  this,  we  find  it  to  have 
been  the  mode  usually  selected  by  persons  of  rank  when 
compelled  to  throw  themselves  upon  the  judgment  of  God. 
The  Empress  Richarda,  wife  of  Charles-le-Gros,  accused  in 
88T  of  adultery  with  Bishop  Liutward,  offered  to  prove  her 
innocence  either  by  the  judicial  combat  or  the  red-hot  iron.3 
The  tragical  tradition  of  Mary,  wife  of  the  Third  Otho, 
contains  a  similar  example,  with  the  somewhat  unusual 
variation  of  an  accuser  undergoing  an  ordeal  to  prove  a 
charge.  The  empress,  hurried  away  by  a  sudden  and  un- 
conquerable passion  for  Amula,  Count  of  Modena,  in  996, 
repeated  in  all  its  details  the  story  of  Potiphar's  wife.  The 
unhappy  count,  unceremoniously  condemned  to  lose  his 
head,  asserted  his  innocence  to  his  wife,  and  entreated  her 
to  clear  his  reputation.  He  was  executed,  and  the  countess, 
seeking  an  audience  of  the  emperor,  disproved  the  calumny 
by  carrying  unharmed  the  red-hot  iron,  when  Otho,  con- 
vinced of  his  rashness  by  this  triumphant  vindication, 
immediately  repaired  his  injustice  by  consigning  his  empress 
to  the  stake.3  When  Edward  the  Confessor,  who  entertained 
a  not  unreasonable  dislike  to  his  mother  Emma,  listened 
eagerly  to  the  accusation  of  her  criminal  intimacy  with 

1  "Si  Presbyterum  occidit  ...  si  liber  est,  cum  xn.  juret ;  si  autem 
servus,  per  XII.  vomeres  ferventes  se  expurget."  Concil.  Mogunt.  ann.  847, 
can.  xxiv.  That  of  Tribur,  however,  in  895,  prescribes  it  for  men  of  rank, 
"fidelis  libertate  notabilis." — Concil.  Tribur.  c.  xxii. 

2  Regino.  ann.  887. — Annales  Metenses. 

3  Gotfridi  Viterbiensis  Pars  xvn.,  "  De  Tertio  Othone  Imperatore."  Siff- 
ridi  Epit.  Lib.  i.  ann.  998.  Ricobaldi  Hist.  Impp.  sub  Ottone  III. — The 
story  is  not  mentioned  by  any  contemporary  authorities,  and  Muratori  has 
well  exposed  its  improbability  (Annali  d'ltalia,  ann.  996)  ;  although  he 
had  on  a  previous  occasion  argued  in  favor  of  its  authenticity  (Antiq.  Ital. 
Dissert.  38).  In  convicting  the  empress  of  calumny,  the  Countess  of  Modena 
appeared  as  an  accuser,  making  good  the  charge  by  the  ordeal  ;  but  if  we 
look  upon  her  as  simply  vindicating  her  husband's  character,  the  case  enters 
into  the  ordinary  course  of  such  affairs.  Indeed,  among  the  Anglo-Saxons, 
there  was  a  special  provision  by  which  the  friends  of  an  executed  criminal 
might  clear  his  reputation  by  undergoing  the  triple  ordeal,  after  depositing 
pledges,  to  be  forfeited  in  case  of  defeat. — Etbelred,  iii.  §  6. 


ORDEAL    01    ftED-flOT    [BON.  205 

Alwyn,  Bishop  of  Winchester,  she  was  condemned  t<» 
undergo  the  ordeal  of  the  burning  shares,  and  walking  over 
them  barefooted  and  unharmed,  slu>  established  beyond  per- 
adventure  the  falsehood  <>f  the  charge.1  Robert  Curthose, 
son  of  \\" i 1 1 i:i in  the  Conqueror,  while  in  exile  daring  his 
youthful  rebellion  against  his  father,  formed  an  intimacy 
with  a  pretty  girL  Years  afterwards,  when  he  was  Duke  of 
Normandy,  she  presented  herself  before  him  with  two  likely 
youths,  whom  she  asserted  to  be  pledges  of  his  former  affec- 
tion.  Robert  was  incredulous |  but  the  mother,  carrying 
unhurt  the  red-hot  iron,  forced  him  to  forego  his  doubts, 
and  to  acknowledge  the  paternity  of  the  boys,  whom  lie 
thenceforth  adopted.4  Indeed  this  was  the  legal  form  of 
proof  in  cases  of  disputed  paternity  established  by  the 
Legislation  of  Iceland  at  this  period,"  and  in  that  of  Spain 
a  century  later.*  Remy,  Bishop  of  Dorchester,  when  ac- 
oused  of  treason  against  William  the  Conqueror,  was  cleared 

1  Rapin,  Hist.  d'Angleterre,  I.  123. — Giles  states  (note  to  William  of  Mal- 
mesbury,  aim.  1043)  that  Richard  of  Devizes  is  the  earliest  authority  for  this 
story. 

3  Order.  Vitalis  Lib.  x.  cap.  13.  3  Gragas,  Sect.  vi.  cap.  45. 

4  "  E  si  alguna  dixiere  que  preriada  es  dalguno,  y  el  varon  no  la  creyere, 
prendo  fierro  caliente  ;  e  si  quemada  fuere,  non  sea  creyda,  mas  si  sana  esca- 
pare  del  fierro,  de  el  fijo  al  padre,  e  criel  assi  como  fuero  es." — Fuero  de 
Baeca  (Villadiego,  Fuero  Juzgo,  fol.  317  a). 

An  important  question  of  the  same  kind  was  settled  in  the  tenth  century 
by  a  direct  appeal  to  Heaven,  through  which  the  rights  of  Ugo,  Marquis 
of  Tuscany,  were  determined.  His  father  Uberto,  incurring  the  enmity  of 
Otho  the  Great,  fled  to  Pannonia,  whence  returning  after  a  long  exile, 
he  found  his  wife  Willa  with  a  boy,  whom  he  refused  to  acknowledge. 
After  much  parleying,  the  delicate  question  was  thus  settled  :  A  large 
assembly,  principally  of  ecclesiastics,  was  convened  ;  Uberto  sat  undistin- 
guished among  the  crowd  ;  the  boy,  who  had  never  seen  him,  was  placed  in 
the  centre,  and  prayers  were  offered  by  all  present  that  be  should  be  led  by 
Divine  instinct  to  his  father.  Either  the  prayers  were  answered,  or  his 
training  had  been  good,  for  he  singled  out  Uberto  without  hesitation,  and 
rushed  to  his  arms  ;  the  cautious  parent  could  indulge  no  longer  in  unworthy 
doubts,  and  Ugo  became  the  most  powerful  prince  of  Italy  (Pet.  Damian. 
Opusc.  lvii.  Diss.  ii.  c.  3,  4). 
18 


206  THE    ORDEAL. 

by  the  devotion  of  a  follower,  who  underwent  the  ordeal 
of  hot  iron.1  In  1143  Henry  I.,  Archbishop  of  Mainz,  ordered 
its  employment,  and  administered  it  himself,  in  a  contro- 
versy between  the  Abbey  of  Gerode  and  the  Counts  of 
Hirschberg.  In  the  special  charter  issued  to  the  abbey 
attesting  the  decision  of  the  trial,  it  is  recorded  that  the 
hand  of  the  ecclesiastical  champion  was  not  only  uninjured 
by  the  fiery  metal,  but  was  positively  benefited  by  it.3 
About  the  same  period,  Centulla  IV.  of  Beam  caused  it  to 
be  employed  in  a  dispute  with  the  Bishop  of  Lescar  concern- 
ing the  fine  paid  for  the  murder  of  a  priest,  the  ecclesiastic, 
as  usual,  being  victorious.3  But  perhaps  the  instance  of 
this  ordeal  most  notable  in  its  results  was  that  by  which 
Bishop  Poppo,  in  962,  succeeded  in  convincing  and  convert- 
ing the  Pagan  Danes.  The  worthy  missionary,  dining  with 
King  Harold  Blaatand,  denounced,  with  more  zeal  than 
discretion,  the  indigenous  deities  as  lying  devils.  The  king 
dared  him  to  prove  his  faith  in  his  God,  and  on  his  assent- 
ing, caused  next  morning  an  immense  piece  of  iron  to  be 
duly  heated,  which  the  undaunted  Poppo  grasped  and  car- 
ried round  to  the  satisfaction  of  the  royal  circle,  displaying 
his  hand  unscathed  by  the  glowing  mass.  The  miracle  was 
sufficient,  and  Denmark  thenceforth  becomes  an  integral  por- 
tion of  Christendom.4  The  most  miraculous  example  of  this 
form  of  ordeal,  however,  was  one  by  which  the  holy  Suidger, 
Bishop  of  Munster,  reversed  the  usual  process.  Suspecting 
his  chamberlain  of  the  theft  of  a  cap,  which  was  stoutly 
denied,  he  ordered  the  man  to  pick  up  a  knife  lying  on  the 
table,  having  mentally  exorcised  it.    The  cold  metal  burned 

1  Roger  of  Wendover.  Ann.  1085. 

2  Quod  ferrum  manum  portantis  non  solum  non  combussit,  sed,  ut  videba- 
tur,  postmodum  saniorem  reddidit. — Gudeni  Cod.  Diplom.  Mogunt.  T.  I. 
No.  liii. 

3  Mazure  et  Hatoulet,  Fors  de  Beam,  p.  xxxviii. 

4  Widukindi  Lib.  in.  cap.  65. — Sigebert.  Gemblac.  Ann.  966.— Dithmari 
Chron.  Lib.  u.  cap.  viii. — Saxo.  Grammat.  Hist.  Danic.  Lib.  x. 


ORD  1:  A  I    Of    It  I  I »  -  1 1  <>T     I  BO  \  .  201 

the  culprit's  hands,  ms  thoiiLi.li  it  were  red  hot,  and  he 
forthwith  confessed  his  gtiilt.1 

No  form  of  ordeal  was  more  thoroughly  introduced 
throughout  the  whole  extent  of  Europe.  From  Spain  to 
Constantinople,  and  fifom  Scandinavia  to  Naples,  it  was 
appealed  to  with  confidence  as  an  unfailing  mode  of  ascer- 
taining the  will  of  Heaven.  The  term  "judicium,"  indeed, 
was  at  Length  understood  to  mean  an  ordeal,  and  generally 
that  of  hot  iron,  and  in  its  barbarized  form,  "juise,"  may 
almost  always  be  considered  to  indicate  this  particular 
kind.  In  the  code  of  the  Frankish  kingdoms  of  the  East,  it 
is  the  only  mode  alluded  to,  except  the  duel,  and  it  there 
retained  its  legal  authority  long  after  it  had  become  obso- 
lete elsewhere.  The  Assises  de  Jerusalem  were  in  force  in 
the  Venetian  colonies  until  the  sixteenth  century,  and  the 
manuscript,  preserved  officially  in  the  archives  of  Yenice, 
described  by  Morelli  as  written  in  1436,  retains  the  primi- 
tive directions  for  the  emplo3Tment  of  the  juise.9  Even  the 
Venetian  translation,  commenced  in  1531,  and  finished  in 
1536,  is  equally  scrupulous,  although  an  act  of  the  Council 
of  Ten,  April  10,  1535,  shows  that  these  customs  had  fallen 
into  desuetude  and  had  been  formally  abolished.3 

This  ordeal  even  became  partially  naturalized  among  the 
Greeks.  In  the  middle  of  the  thirteenth  century,  the  Empe- 
ror Theodore  Lascaris  demanded  that  Michael  Paleologus, 
who  afterwards  wore  the  imperial  crown,  should  clear  him- 
self of  an  accusation  in  this  manner ;  but  the  Archbishop 
of  Philadelphia,  on  being  appealed  to,  pronounced  that  it 
was  a  custom  of  the  barbarians,  condemned  by  the  canons, 
and  not  to  be  employed  except  by  the  special  order  of  the 
emperor.* 

1  Annalista  Saxo,  aim.  993. 

a  This  text  is  given  by  Kausler,  Stuttgard,  1839,  together  with  an  older 
one  compiled  for  the  lower  court  of  Nicosia.  It  is  to  this  edition  that  all 
references  are  made. 

3  Pardessus,  Us  et  Coutumes  de  la  Mer,  I.  268  sqq. 

4  Du  Cange,  s.  v.  Ferrum  caiulens. 


208  THE    ORDEAL. 

In  Europe,  even  as  late  as  1310,  in  the  proceedings 
against  the  Order  of  the  Templars,  at  Mainz,  Count  Frede- 
ric, the  master  preceptor  of  the  Rhenish  provinces,  offered 
to  substantiate  his  denial  of  the  accusations  by  carrying 
the  red-hot  iron.1  Perhaps  one  of  the  latest  instances 
of  its  actual  employment  was  that  which  occurred  in 
Modena  in  1329,  in  a  dispute  between  the  German  soldiers 
of  Louis  of  Bavaria  and  the  citizens.  The  Germans 
offered  to  settle  the  question  by  carrying  a  red-hot  bar ; 
but  when  the  townsfolks  themselves  accomplished  the  feat, 
and  triumphantly  showed  that  no  burn  had  been  inflicted, 
the  Germans  denied  the  proof,  and  asserted  that  magic  had 
been  employed.3 

The  ordeal  of  fire  was  sometimes  administered  directly, 
without  the  intervention  of  water  or  of  iron ;  and  in  this, 
its  simplest  form,  it  may  be  considered  the  origin  of  the 
proverbial  expression,  "  J'en  mettrois  la  main  au  feu,"  as 
an  affirmation  of  positive  belief,3  showing  how  thoroughly 
the  whole  system  engrained  itself  in  the  popular  mind. 
The  earliest  legal  allusion  to  it  occurs  in  the  code  of  the 
Ripuarian  Franks,  where  it  is  prescribed  as  applicable  to 
slaves  and  strangers,  in  some  cases  of  doubt.4     From  the 

1  Et  super  hoc  paratus  esset  experientiam  subire  et  ferrum  ardens  portare. 
— Raynouard,  Monuments  relatifs  a  la  Condamn.  des  Chev.  du  Temple, 
p.  269. 

2  Bonif.  de  Morano  Chron.  Mutinense. — ap.  Muratori  Antiq.  Ital.  Diss.  38. 

3  Thus  Rabelais,  "  en  mon  aduiz  elle  est  pucelle,  toutesfoys  ie  nen  vould- 
roys  mettre  mon  doigt  on  feu"  (Pantagruel,  Lib.  II.  chap,  xv.)  ;  and  the 
Epist.  Obscur.  Virorum  (P.  II.  Epist.  1)  "  Quamvis  M.  Bernhardus  diceret, 
quod  vellet  disputare  ad  ignem  quod  ha3c  est  opinio  vestra. " 

4  Quodsi  servus  in  ignem  manum  miserit,  et  lassam  tulerit,  etc.  —  Tit. 
xxx.  Cap.  i.  ;  also  Tit.  xxxi.  If  we  may  credit  Cedrenus  (Compend. 
Histor.  Ann.  16  Anastasii),  as  early  as  the  year  507,  under  the  Emperor 
Anastasius,  a  Catholic  bishop,  who  had  been  worsted  in  a  theological  dispute 
with  an  Arian,  vindicated  his  tenets  by  standing  in  the  midst  of  a  blazing 
bonfire,  and  thence  addressing  an  admiring  crowd ;  but  Cedrenus  being  a 
compiler  of  the  eleventh  century,  and  zealous  in  his  orthodoxy,  the  incident 
can  hardiy  be  thought  to  possess  much  importance  except  as  illustrating  the 
age  of  the  writer,  not  that  attributed  to  the  occurrence. 


OR  DMA  I.    0  K    ri  I  k.  209 

phraseology  of  the  .  we  may  conclude  that  it 

was  thru  administered  by  placing  the  band  of  the  accused 
in  a  fire.     Subsequently,  however,  it  was  conducted  on  a 

larger  and  more  impressive  scale;  huge  pyres  were  built, 
and  the  Individual  undergoing  the  trial  literally  walked 
through  the  (lames.    The  celebrated  Petrua  [gnens  gained 

his  surname  and  reputation  by  an  exploit  of  this  kind, 
which  attracted  great  attention  in  its  day.  Pietro  di 
Pavia,  Bishop  of  Florence,  unpopular  with  the  citizens, 
but  protected  by  Godfrey,  Duke  of  Tuscany,  was  accused 
of  simony  and  heresy.  Being  acquitted  by  the  Council  of 
Home,  in  10G3,  and  the  offer  of  his  accusers  to  prove  his 
guilt  by  the  ordeal  of  fire  being  refused,  he  endeavored  to 
put  down  his  adversaries  by  tyranny  and  oppression. 
Great  disturbances  resulted,  and  at  length,  in  1067,  the 
monks  of  Yallombrosa,  who  had  borne  a  leading  part  in 
denouncing  the  bishop,  and  who  had  suffered  severely  in  * 
consequence  (the  episcopal  troops  having  burned  the  mon- 
astery ofS.  Salvio  and  slaughtered  the  cenobites),  resolved 
to  decide  the  question  by  the  ordeal,  incited  thereto  by  no 
less  than  three  thousand  enthusiastic  Florentines,  who 
assembled  there  for  the  purpose.  Pietro  Aldobrandini,  a 
monk  of  Yallombrosa,  urged  byT  his  superior,  the  holy  S. 
Giovanni  Gualberto,  offered  himself  to  undergo  the  trial. 
After  imposing  religious  ceremonies,  he  walked  slowly  be- 
tween two  piles  of  blazing  wood,  ten  feet  long,  five  feet  wide, 
and  four  and  a  half  feet  high,  the  passage  between  them 
being  six  feet  wide  and  covered  with  an  inch  or  two  of 
glowing  coals.  The  violence  of  the  flames  agitated  his 
dress  and  hair,  but  he  emerged  without  hurt,  even  the  hair 
on  his  legs  being  unsinged,  barelegged  and  barefooted 
though  he  was.  Desiring  to  return  through  the  pyre,  he 
was  prevented  by  the  admiring  crowd,  who  rushed  around 
him  in  triumph,  kissing  his  feet  and  garments,  and  endan- 
gering his  life  in  their  transports,  until  he  was  rescued  by 
his  fellow  monks.    A  formal  statement  of  the  facts  was  sent 

18* 


210  THE    ORDEAL. 

to  Rome  by  the  Florentines,  the  Papal  court  gave  way,  and 
the  bishop  was  deposed;  while  the  monk  who  had  given  so 
striking  a  proof  of  his  steadfast  faith  Avas  marked  for  promo- 
tion, and  eventually  died  Cardinal  of  Albano.1  An  example 
of  a  similar  nature  occurred  in  Milan,  in  1103,  when  the 
Archbishop  Grossolano  was  accused  of  simony  by  a  priest 
named  Liutprand,  who,  having  no  proof  to  sustain  his 
charge,  offered  the  ordeal  of  fire.  All  the  money  he  could 
raise,  he  expended  in  procuring  fuel,  and  when  all  was  ready 
the  partisans  of  the  archbishop  attacked  the  preparations 
and  carried  off  the  wood.  The  populace,  deprived  of  the 
promised  exhibition,  grew  turbulent,  and  Grossolano  was 
obliged  not  only  to  assent  to  the  trial,  but  to  join  the  authori- 
ties in  providing  the  necessary  materials.  In  the  Piazza  di 
S.  Ambrosio  two  piles  were  accordingly  built,  each  ten  cubits 
long,  by  four  cubUs  in  height  and  width,  with  a  gangway 
between  them  of  a  cubit  and  a  half.  As  the  undaunted 
priest  entered  the  blazing  mass,  the  flames  divided  before 
him,  and  closed  as  he  passed,  allowing  him  to  emerge  in 
safety — although  with  two  slight  injuries,  one  a  burn  on 
the  hand,  received  while  sprinkling  the  fire  before  entering, 
the  other  on  the  foot,  which  he  attributed  to  a  kick  from  a 
horse  in  the  crowd  that  awaited  his  exit.  The  evidence 
was  accepted  as  conclusive  by  the  people,  and  Grossolano 
was  obliged  to  retire  to  Rome.  Pascal  II.,  however,  re- 
ceived him  graciously,  and  the  Milanese  suffragans  disap- 
proved of  the  summary  conviction  of  their  rhetropolitan, 
to  which  they  were  probably  all  equally  liable.  The  inju- 
ries received  by  Liutprand  were  exaggerated,  a  tumult  was 
excited  in  Milan,  the  priest  was  forced  to  seek  safety  in 
flight,  and  Grossolano  was  restored.2 

But  the  experiment  was  not  always  so  successful  for  the 
rash  enthusiast.     In  1098,  during  the  first  crusade,  after 

1  Vit.  S.  Johannis  Gualberti  c.  lx  -lxiv. 

a  Lnndulph.  Jun.  Hist.  Mediol.  cap.  ix  ,  x.,  xi.  (Rer.  Ital.  Script.  T.  V.)- 
Muratori,  Anna!.  Ann.  1103. 


OBDli  i-    «»  v    9  l  uk.  211 

the  capture  of  A.ntiooh,  when  the  Christians  were  In  turn 
besieged  In  that  fit  v.  and,  sorely  pressed  and  famm&etruek, 
were  vrell-nigh  reduced  to  despair .  an  Ignorant  peasant  named 
Peter  Bartholomew)  a  follower  of  Raymond  of  Toulouse, 

announced  a  series  of  visions  in  which  St.  Andrew  :m«l  the 

Saviour  had  revealed  to  him  that  the  lance  which  pierced 
the  side  of  Christ  lav  hidden  in  the  church  of  St.  Peter. 
Alter  several  men  had  dug  in  the  spot  indicated,  from 
morning  until  night,  without  success,  Peter  leaped  into  the 
trench,  and  by  a  few  well-directed  strokes  of  his  mattock 
exhumed  the  priceless  relic,  which  he  presented  to  Count 
Raymond.  Cheered  by  this,  and  by  various  other  mani- 
festations of  Divine  assistance,  the  Christians  gained  heart, 
and  defeated  the  Infidels  with  immense  slaughter.  Peter 
became  a  man  of  mark,  and  had  fresh  visions  on  all  import- 
ant conjunctures.  Amid  the  jealousies  and  dissensions 
which  raged  among  the  Frankish  chiefs,  the  possession  of 
the  holy  lance  vastly  increased  Raymond's  importance,  and 
rival  princes  were  found  to  assert  that  it  was  merely  a  rusty 
Arab  weapon,  hidden  for  the  occasion,  and  wholly  unde- 
serving the  veneration  of  which  it  was  the  object.  At 
length,  after  some  months,  during  the  leisure  of  the  siege 
of  Arenas,  the  principal  ecclesiastics  in  the  camp  investi- 
gated the  matter,  and  Peter,  to  silence  the  doubts  ex- 
pressed as  to  his  veracity,  offered  to  vindicate  the  identity' 
of  the  relic  by  the  fiery  ordeal.  He  was  taken  at  his  word, 
and  after  three  days  allowed  for  fasting  and  prayer,  a  pile 
of  dry  olive-branches  was  made,  fourteen  feet  long  and  four 
feet  high,  with  a  passage-way  one  foot  wide.  In  the  pre- 
sence of  forty  thousand  men  all  eagerly  awaiting  the  result, 
Peter,  bearing  the  object  in  dispute,  and  clothed  only  in  a 
tunic,  boldly  rushed  through  the  flames,  amid  the  anxious 
] >ravers  and  adjurations  of  the  multitude.  As  the  chroni- 
clers lean  to  the  side  of  the  Neapolitan  Princes  or  of  the 
Count  of  Toulouse,  so  do  their  accounts  of  the  event  differ ; 
the  former  asserting  that  Peter  sustained  mortal  injury  in 


212  THE     ORDEAL. 

the  fire ;  the  latter  assuring  us  that  he  emerged  safely,  with 
but  one  or  two  slight  burns,  and  that,  the  crowd  enthusias- 
tically pressing  round  him  in  triumph,  he  was  thrown  down, 
trampled  on,  and  injured  so  severely  that  he  died  in  a  few 
days,  asseverating  with  his  latest  breath  the  truth  of  his 
revelations.  Raymond  persisted  in  upholding  the  sanctity 
of  his  relic,  but  it  was  subsequently  lost.1 

Even  after  the  efforts  of  Innocent  III.  to  abolish  the 
ordeal,  and  while  the  canons  of  the  Council  of  Lateran  were 
still  fresh,  St.  Francis  of  Assisi,  in  1219,  offered  himself  to  the 
flames  for  the  propagation  of  the  faith.  In  his  missionary 
trip  to  the  East,  finding  the  Sultan  deaf  to  his  proselyting 
eloquence,  he  proposed  to  test  the  truth  of  their  respective 
religions  by  entering  a  blazing  pile  in  company  with  some 
imams,  who  naturally  declined  the  perilous  experiment. 
Nothing  daunted,  the  enthusiastic  Saint  then  said  that  he 
would  traverse  the  flames  alone  if  the  Sultan  would  bind 
himself,  in  the  event  of  a  triumphant  result,  to  embrace  the 
Christian  religion  and  to  force  his  subjects  to  follow  the 
example.  The  Turk,  more  wary  than  the  Dane  whom 
Poppo  converted,  declined  the  proposition,  and  St.  Francis 
returned  from  his  useless  voyage  unharmed.2    The  honors 

1  Fulcher.  Carnot.  cap.  x.  ;  Radulf.  Cadouiensis  cap.  c,  ci.,  cii.,  cviii.  ; 
Raimond.  de  Agiles  (Bongars,  I.  150-168).  The  latter  was  chaplain  of  the 
Count  of  Toulouse,  and  a  firm  asserter  of  the  authenticity  of  the  lance.  He 
relates  with  pride,  that  on  its  discovery  he  threw  himself  into  the  trench  and 
kissed  it  while  the  point  only  had  as  yet  been  uncovered.  He  likewise 
officiated  at  the  ordeal,  and  delivered  the  adjuration  as  Peter  entered  the 
flames  :  "Si  Deus  omnipotens  huic  homini  loquutus  est  facie  ad  faciem,  et 
beatus  Andreas  Lanceam  Dominicam  ostendit  ei,  cum  ipse  vigilaret,  transeat 
iste  illaesus  per  ignem.  Sin  autem  aliter  est,  et  mendacium  est,  comburatur 
iste  cum  lancea  quam  portabit  in  manibus  suis."  Raoul  de  Caen,  on  the 
other  hand,  in  1107  became  secretary  to  the  chivalrous  Tancred,  and  thus 
obtained  his  information  from  the  opposite  party.  He  is  very  decided  in 
his  animad versions  on  the  discoverers.  Fulcher  de  Chartres  was  chaplain 
to  Baldwin  I.  of  Jerusalem,  and  seems  impartial,  though  sceptical. 

2  Raynaldi  Annal.  Eccles.  ann.  1219,  c.  56. — In  this,  St.  Francis  en- 
deavored unsuccessfully  to  emulate  the  glorious  achievement  of  St.  Boniface 
the  Apostle  of  Russia,  who  converted  the  King  of  Russia  and  his  court  by 


ORDEAL    OF    FIRE.  213 

which  the  unbelievers  rendered  to  their  self-sacrificing  ■ 
mav  perhaps  be  explained  by  the  reverence  with  which  they 
Mic  accustomed  to  regard  madmen* 

A  still  more  remarkable  attempt  at  this  kind  of  ordeal 
occurred  at  a  orach  later  period,  irhen  the  whole  system  bad 
Long  become  obsolete,  and  though  not  carried  into  execution, 
it  is  worthy  of  passing  notice,  as  it  may  be  said  to  have 
produced  results  affecting  the  destinies  of  civilization  to 
our  own  day.  When,  at  the  close  of  the  fifteenth  century, 
Savonarola,  the  precursor  of  the  Reformation,  was  com- 
mencing at  Florence  the  career  which  Luther  afterwards 
accomplished,  and  was  gradually  throwing  off  all  reverence 
for  the  infamous  Borgia,  who  then  occupied  the  chair  of  St. 
Peter,  he  challenged  any  of  his  adversaries  to  undergo  with 
him  the  ordeal  of  fire,  to  test  the  truth  of  his  propositions 
that  the  Church  needed  a  thorough  reformation,  and  that 
the  excommunication  pronounced  against  him  by  the  Pope 
was  null  and  void.  In  149t,  the  Franciscan  Francesco  di 
Puglia,  an  ardent  opponent,  accepted  the  challenge,  but  left 
Florence  before  the  preliminaries  were  arranged.  On  his 
return,  in  the  following  year,  the  affair  was  again  taken  up ; 
but  the  principals  readily  found  excuses  to  devolve  the  dan- 
gerous office  on  enthusiastic  followers.  Giuliano  Rondi- 
ndli,  another  Franciscan,  agreed  to  replace  his  companion, 
declaring  that  he  expected  to  be  burned  alive ;  while  on  the 
other  side  the  ardor  wras  so  great  that  two  hundred  and 
thirty-eight  Dominicans  and  numberless  laymen  subscribed 
a  request  to  be  permitted  to  vindicate  their  cause  b}^  tri- 
umphantly undergoing  the  trial  unhurt,  in  place  of  Do- 
menico  da  Peschia,  who  had  been  selected  as  Savonarola's 
champion.  At  length,  after  many  preliminaries,  the  Signiory 
of  Florence  assigned  the  7th  of  April,  1498,  for  the  experi- 
ment. An  immense  platform  was  erected,  on  which  a  huge 
pile  of  wood  was  built,  charged  with  gunpowder  and  other 

means  of  a  similar  bargain  and  ordeal — at  least  according  to  the  current 
martyrologies  (Martyrol.  Roman.  19  Jun),  on  the  authority  of  St.  Peter  Da- 
niian  (Vit.  S.  Ilomuald.  c.  27). 


214  THE     ORDEAL. 

combustibles,  and  traversed  hy  a  narrow  passage,  through 
which  the  champions  were  to  walk.  All  Florence  assembled 
to  see  the  show ;  but,  when  everything  was  ready,  quibbles 
arose  about  permitting  the  champions  to  carry  crucifixes, 
and  to  have  the  sacrament  with  them,  about  the  nature  of 
their  garments,  and  other  like  details,  in  disputing  over 
which  the  day  wore  away,  and  at  vespers  the  assemblage 
broke  up  without  result.  Each  party,  of  course,  accused 
the  other  of  having  raised  the  difficulties  in  order  to  escape 
the  ordeal ;  and  the  people,  enraged  at  being  cheated  of  the 
promised  exhibition,  and  determined  to  have  compensation 
for  it,  easily  gave  credit  to  the  assertions  of  the  Franciscans, 
who  stimulated  their  ardor  by  affirming  that  Savonarola 
had  endeavored  to  commit  the  sacrilege  of  burning  the 
sacrament.  In  two  days  they  thus  succeeded  in  raising  a 
tumult,  during  which  Savonarola's  convent  of  San  Marco 
was  attacked.  Notwithstanding  a  gallant  resistance  by  the 
friars,  he  was  taken  prisoner,  and,  after  undergoing  frightful 
tortures,  was  hanged  and  burned.  Thus  was  repressed  a 
movement  which  at  one  time  promised  to  regenerate  Italy, 
and  to  restore  purity  to  a  corrupted  Church.  The  mind 
loses  itself  in  conjecturing  what  would  have  been  the  result 
if  the  career  of  Savonarola  had  not  thus  been  brought  to 
an  untimely  end;  though,  while  fully  acknowledging  Ms 
genius  and  fervor,  we  must  admit  that  he  was  not  of  the 
stuff  of  which  the  leaders  of  mankind  are  fashioned.1 

It  will  be  observed  that  the  ordeal  of  fire  was  principally 

1  I  have  principally  followed  a  very  curious  and  characteristic  account  of 
the  "  Sperimento  del  Fuoco,"  contained  in  a  Life  of  Savonarola  by  the  P. 
Pacifico  Burlaniacchi,  given  by  Mansi  in  his  edition  of  the  Miscellanea  of 
Baluze,  I.  530  sqq.  Burlamacchi,  as  a  friend  and  ardent  follower  of  the 
reformer,  of  course  throws  all  the  blame  of  defeating  the  ordeal  on  the 
quibbles  raised  by  the  Franciscans,  while  the  Diary  of  Burchard,  master  of 
ceremonies  of  the  Papal  Chapel  to  Borgia  (Diarium  Curiae  Bomanae,  ann. 
1498),  roundly  asserts  the.  contrary.  Guicciardini  (Lib.  in.  cap.  vi.)  briefly 
states  the  facts,  without  venturing  an  opinion,  except  that  the  result  utterly 
destroyed  the  credit  of  Savonarola,  and  enabled  his  enemies  to  make  short 
work  with  him. 


ORDEAL    OP    FIRE.  215 

■Acted  by  ecclesiastics  in  church  affairs,  perhaps  because 
it  was  of  a  nature  t<>  produce  a  powerful  impression  on  the 
spectators,  while  at  the  same  time  it  could  no  doubt  in  many 
Instances  be  so  managed  as  to  secure  the  desired  results 
by  those  who  controlled  the  details.  In  like  manner,  it  was 
occasionally  employed  on  inanimate  matter  to  decide  points 
of  faith  or  polity.  Thus,  in  the  question  which  excited 
great  commotions  in  Spain  in  10 1 7,  as  to  the  substitution  of 
the  Roman  for  the  Gothic  or  Mozarabic  rite,  after  a  judicial 
combat  had  been  fought  and  determined  in  favor  of  the 
national  ritual,  the  partisans  of  the  Roman  offices  continued 
to  urge  their  cause,  and  the  ordeal  of  fire  was  appealed  to. 
A  missal  of  each  kind  was  committed  to  the  flames,  and,  to 
the  great  joy  of  all  patriotic  Castilians,  the  Gothic  offices 
were  unconsumed.1  A  somewhat  similar  instance  occurred 
in  Constantinople,  as  late  as  the  close  of  the  thirteenth 
century,  when  Andronicus  II.,  on  his  accession,  found 
the  city  torn  into  factions  relative  to  the  patriarchate, 
arising  from  the  expulsion  of  Arsenius,  a  former  patriarch. 
All  attempts  to  soothe  the  dissensions  proving  vain,  at 
length  both  parties  agreed  to  write  out  their  respective 
statements  and  arguments,  and,  committing  both  books  to 
the  flames,  to  abide  by  the  result,  each  side  hoping  that  its 
manuscript  would  be  preserved  by  the  special  interposition 
of  Heaven.  The  ceremony  was  conducted  with  imposing 
state,  and,  to  the  general  surprise,  both  books  were  reduced 
to  ashes.  Singularly  enough,  all  parties  united  in  the 
sensible  conclusion  that  God  had  thereby  commanded  them 
to  forget  their  differences,  and  to  live  in  peace.2 

The  genuineness  of  relics  was  often  tested  in  this  manner 

1  Ferreras,  Hist.  Gen.  d'Espagne,  trad.  d'Hermilly,  III.  245.  Tho  au- 
thenticity of  this  miracle  has  somewhat  exercised  orthodox  writers,  and 
Mabillon  states  that  the  earliest  authority  for  it  is  Roderic,  Archbishop  of 
Toledo,  who  flourished  in  the  middle  of  the  thirteenth  century  (Prooem.  ad 
Vit.  Greg.  VII.  No.  10).  If  this  be  so,  it  only  shows  to  how  late  a  period 
the  superstition  extended. 

-  Niceph.  Gregor.  Lib.  vi. 


216  THE     ORDEAL. 

by  exposing  them  to  the  action  of  fire.  When,  in  10G5,  the 
pious  iEgelwin,  Bishop  of  Durham,  miraculously  discovered 
the  relics  of  the  holy  martyr  King  Oswyn,  he  gave  the  hair 
to  Judith,  wife  of  Tosti,  Earl  of  Northumberland,  and  she 
with  all  reverence  placed  it  on  a  raging  fire,  whence  it  was 
withdrawn,  not  only  uninjured,  but  marvellously  increased 
in  lustre,  to  the  great  edification  of  all  beholders.1  Guibert 
de  Nogent  likewise  relates  that,  when  his  native  town  be- 
came honored  with  the  possession  of  an  arm  of  St.  Arnoul, 
the  inhabitants,  at  first  doubting  the  genuineness  of  the 
precious  relic,  cast  it  into  the  flames ;  when  it  vindicated 
its  sanctity,  not  only  by  being  fire-proof,  but  also  by  leaping 
briskly  away  from  the  coals,  testimony  which  was  held  to 
be  incontrovertible.3 

The  cold-water  ordeal  (judicium  aquae  frigidee)  differed 
from  most  of  its  congeners  in  requiring  a  miracle  to  convict 
the  accused,  as  in  the  natural  order  of  things  he  escaped. 
The  preliminary  solemnities,  fasting,  prayer,  and  religious 
rites,  were  similar  to  those  already  described ;  the  reservoir 
of  water,  or  pond,  was  then  exorcised  with  formulas  exhi- 
biting the  same  combination  of  faith  and  impiety,  and  the 
accused,  bound  with  cords,  was  lowered  into  it  with  a  rope, 
to  prevent  fraud  if  guilty,  and  to  save  him  from  drowning 
if  innocent  ;3  the  length  of  rope  allowed  under  water  being 
an  ell  and  a  half,  according  to  the  Anglo-Saxon  rule.4 

The  basis  of  this  ordeal  was  the  superstitious  belief  that 
the  pure  element  would  not  receive  into  its  bosom  any  one 
stained  with  the  crime  of  a  false  oath,  a  belief  which,  as  we 

1  Matthew  of  Westminster,  Ann.  1065. 

2  Guibert.  Noviogent.  de  Vita  sua  Lib.  III.  cap.  xxi. 

3  Ne  aut  aliquem  possit  fraudem  in  judicio  facere,  aut  si  aqua  ilium  velut 
innoxium  reciperit,  ne  in  aqua  pericletetur,  ad  tempus  valeat  retrahi. — 
Hincmar.  de  Divert.  Lothar.  Interrog.  vi.  It  may  readily  be  supposed  that 
a  skilful  management  of  the  rope  might  easily  produce  the  appearance  of 
floating,  when  a  conviction  was  desired  by  the  priestly  operators. 

4  Et  si  judicium  aque  frigide  sit,  tunc  immergatur  una  ulna  et  dimidia 
in  fune. — L.  iEthelstani,  i.  cap.  xxiii. 


ORDEAL    OF    COLD    W  ATI:  i:.  211 

have  seen,  w.ms  entertained  in  primeval  India,  and  which 
bears  considerable  resemblance  to  the  kindred  superstition 
of  old,  that  the  earth  would  eject  the  corpse  of  :>  criminal) 

and  not  allow  it  to  remain  quietly  interred.  The  ecclesi- 
astical doctrines  on  the  subject  are  clearly  enunciated  by 
Hincmar:  k*  He  who  seeks  to  conceal  the  truth  by  a  lie  will 
not  sink  in  the  waters  over  which  the  voice  of  the  Lord 
hath  thundered;  for  the  pure  nature  of  water  recognizes  as 
impure,  and  rejects  as  incompatible,  human  nature  which, 
released  from  falsehood  by  the  waters  of  baptism,  becomes 
again  infected  with  untruth."1  The  baptism  in  the  Jordan, 
the  passage  of  the  Red  Sea,  and  the  crowning  judgment  of 
the  Deluge,  were  freely  adduced  in  support  of  this  theory, 
though  these  latter  were  in  direct  contradiction  to  it,  and 
the  most  figurative  language  was  boldly  employed  to  give 
some  show  of  probability  to  the  results  expected.  Thus,  in 
St.  Dunstan's  elaborate  formula,  the  prayer  offered  over  the 
water  metaphorically  adjures  the  Supreme  Being — "Let  not 
the  water  receive  the  body  of  him  who,  released  from  the 
weight  of  goodness,  is  upborne  by  the  wind  of  iniquity!"3 
As  practised  in  modern  India,  however,  the  trial  is  rather 
one  of  endurance.  The  patient  stands  in  water  up  to  his 
middle,  facing  the  East.  He  dives  under,  while  simulta- 
neously an  arrow  of  reed  without  a  head  is  shot  from  a  bow, 
106  fingers'  breadth  in  length,  and  if  he  can  remain  under 
water  until  the  arrow  is  picked  up  and  brought  back,  he 
gains  his  cause.3 

1  Qui  veritatem  mendacio  cupit  obtegere,  in  aquis,  super  quas  vox  Do- 
mini Dei  majestatis  intonuit,  non  potest  mergi,  quia  pura  natura  aquae  natu- 
rainhuruanam  per  aquam  baptismatis  ab  omni  mendacii  figmento  purgatara, 
iterum  mendacio  infectam,  non  recognoscit  puram,  et  ideo  earn  non  recipit, 
sed  rejicit  ut  alienam. — De  Divort.  Lothar.  Interrog.  vi. 

3  Nee  patiantur  recipere  corpus,  quod  ab  onere  bonitatis  evaeu:itiitn, 
ventus  iniquitatis  allevavit  ac  inane  constituit. — Ordo  S.  Dunstani  Doro- 
bern.     (Baluze,  II.  650.) 

3  Ayeen  Akbery,  II.  407.  The  use  of  this  ordeal  was  confined  to  the 
Vaisya  or  caste  of  husbandmen  and  merchants. 

19 


218  THE    ORDEAL. 

Although  the  use  of  this  form  of  ordeal  prevailed  wher- 
ever the  judgment  of  God  was  appealed  to,  and  although  it 
enjoyed  a  later  existence  than  any  of  its  kindred  practices, 
it  was  the  last  to  make  its  appearance  in  Europe.  There 
seems  to  be  good  reason  for  attributing  its  introduction  as 
a  Christian  mode  of  trial  to  Pope  Eugenius  II.,  who  occu- 
pied the  pontifical  throne  from  824  to  827,  although  some 
critics  have  denied  to* it  this  paternity,  on  what  would  seem 
to  be  insufficient  grounds.  Baluze  gives  a  formula  for  con- 
ducting it  which  is  thought  to  be  of  the  ninth  century,  and 
which  expressly  states  that  Eugenius  invented  it  at  the 
request  of  Louis-le-Debonnaire,  as  a  means  of  repressing 
the  prevalent  vice  of  perjury ;  and  another  manuscript  to 
which  Mabillon  attributes  the  same  date  makes  a  similar 
assertion.1  All  this  derives  additional  probability  from 
the  fact  that  the  cold-water  ordeal  is  not  alluded  to  in  any 
of  the  codes  or  laws  anterior  to  the  ninth  century,  while  it 
is  continually  referred  to  in  subsequent  ones ;  and  another 
evidence  of  weight  is  afforded  by  St.  Agobard,  Archbishop 
of  Lyons,  who,  in  his  celebrated  treatise  against  the  judg- 
ment of  God,  written  a  few  years  before  the  accession  of 
Eugenius,  while  enumerating  and  describing  the  various 
modes  in  use,  says  nothing  about  that  of  cold  water.8    The 

1  Hoc  judicium  autem,  petente  Domno  Hludovico  Imperatore,  constituit 
beatus  Eugenius,  .  .  .  .  ne  perjuri  super  reliquias  sanctorum  perdant  suas 
animas  in  malum  consentientes  (Baluze,  II.  646). — Hoc  autem  judicium 
creavit  omnipotens  Deus,  et  verum  est ;  et  per  Domnum  Eugenium  Apostoli- 
cum  inventum  est  (Mabillon,  Analecta,  pp.  161,  162,  ap.  Cangium.). — The 
same  assertion  is  made  in  several  other  rituals  which  are  given  at  length 
by  Muratori  (Antiq.  Ital.  Dissert.  38)  ;  and  by  Juretus  (Observat.  ad  Ivon. 
Epist.  74).  Some  ancient  MSS.  also  attribute  it  to  Leo  III.,  a  quarter  of  a 
century  earlier,  stating  that  when  in  799  the  Romans  revolted  against  him, 
he  fled  to  Charlemagne,  and  that,  on  the  Emperor's  bringing  him  back  to 
Rome,  this  form  of  ordeal  was  introduced  to  try  the  authors  of  the  disturb- 
ance.    (Muratori,  loc.  cit.) 

2  Non  oportet  .  .  .  suspicari  quod  omnipotens  Deus  occulta  hominum  in 
praesenti  vita  per  aquam  calidam  aut  ferrum  revelari  velit ;  quanto  minus  per 
crudelia  certamina? — (Lib.  adv.  L.  Gundobadi  cap.  ix.)    And  again,  in  the 


ORDEAL  OP  COLD  WATER.  811 

only  arguments  alleged  In  favor  of  an  earlier  date  are  ccr- 
t:iin  passages  in  Gregory  of  Tours,  describing  miracles  in 

which  saintly  personages  condemned  to  be  drowned  floated 
triumphantly  ashore — cases  which  have  evidently  nothing 
to  do  with  the  question,  as  they  were  interpositions  of 
Providence  to  save,  not  to  condemn,  and  were  inflictions 
of  punishment,  not  legal  investigations.1 

The  new  process  had  a  hard  struggle  for  existence.  But 
a  few  years  after  its  introduction,  it  was  condemned  by 
Louis-le-Pebonnaire  at  the  Council  of  Worms,  in  829 ;  its 
use  was  strictly  prohibited,  and  the  "missi  dominici"  were 
instructed  to  see  that  the  order  was  carried  into  effect, 
regulations  which  were  repeated  by  the  Emperor  Lothair, 
son  of  Louis.8  Notwithstanding  this,  it  seemed  to  adapt 
itself  to  popular  prejudices,  and  the  interdiction  was  of 
little  avail ;  Hincmar,  indeed,  dismissing  it  with  the  remark 
that  the  prohibition  was  not  confirmed  by  the  canons  of 
authoritative  councils.3  The  trial  by  cold  water  spread 
throughout  Europe,  and  among  all  the  Continental  races 
it  was  placed  on  an  equal  footing  with  the  other  forms  of 
ordeal.  Among  the  Anglo-Saxons,  indeed,  its  employment 
has  been  called  in  question  by  some  modern  writers ;  but 
the  Dooms  of  JEthelstan,  and  the  formula  of  St.  Dunstan 

Liber  contra  Judicium  Dei,  cap.  i.  :  "  Mitte  unura  de  tuis,  qui  congrediatur 
mecum  singulari  certamine,  ut  probet  me  reum  tibi  esse,  si  occiderit ;  aut 
certe,  jube  ferrum  vel  aquas  calefieri,  quas  manibus  illaesus  attrectem ;  aut 
constitue  cruces.  ad  quas  stans  immobilis  perseverem." 

1  Qregor.  Turon.  Miracul.  Lib.  i.  c.  69,  70.  The  Epistle  given  in  Gratian 
(C  Mennam  caus.  2.  q.  5)  as  written  by  St.  Gregory  to  Queen  Brunhilda, 
scarcely  needs  a  reference,  its  allusions  to  the  ordeal  having  long  since  been 
restored  to  their  true  author,  Alexander  II.  (Epist.  122). 

9  Ut  examen  aquae  frigid®,  quae  hactenus  fiebat,  a  missis  nostris  omnibus 
modis  interdicatur,  ut  non  ulterius  fiat. — Capit.  Wormat.  Ann.  829,  Tit.  II. 
cap   12  ; — L.  Longobard.  Lib.  IX.  Tit.  Iv.  §  31. 

3  Nee  praatereundum  quia  legimus  in  capitulis  Augustorum  fuisse  vetitum 
frigidce  aqua)  judicium ;  sed  non  in  illis  synodalibus  quao  de  certis  accepimus 
eynodis. — De  Divort.  Lothar.  Interrog.  vi. 


220  THE    ORDEAL. 

of  Canterbury,  already  quoted,   sufficiently  manifest   its 
existence  in  England  before  the  Conquest. 

The  ordeals  of  both  hot  and  cold  water  were  stigmatized 
as  plebeian  from  an  early  period,  as  the  red-hot  iron  and  the 
duel  were  patrician.  Thus  Hincmar,  in  the  ninth  century, 
alludes  to  the  former  as  applicable  to  persons  of  servile 
condition  ;*  a  constitution  of  the  Emperor  St.  Henry  II., 
about  A.  D.  1000,  in  the  Lombard  law,  has  a  similar  bear- 
ing ;a  an  Alsatian  document  in  the  eleventh,3  and  the  laws 
of  Scotland  in  the  twelfth  century,  assume  the  same  po- 
sition ;*  and  Glanville  at  the  end  of  the  twelfth  century 
expressly  asserts  it.5  This,  however,  was  an  innovation  ; 
for  in  the  earliest  codes  there  is  no  such  distinction,  a  pro- 
vision in  the  Salique  law  even  prescribing  the  seneum,  or 
hot-water  ordeal,  for  the  Antrustions,  who  constituted  the 
most  favored  class  in  the  state.8  Nor  even  in  later  times 
was  the  rule  by  any  means  absolute.  In  the  tenth  century, 
Sanche,  Duke  of  Gascony,  desirous  of  founding  the  monas- 
tery of  Saint  Sever,  claimed  some  land  which  was  necessary 
for  the  purpose,  and  being  resisted  by  the  possessor,  the 
title  was  decided  by  reference  to  the  cold-water  ordeal.7 
In  1021,  Guelf  II.,  Count  of  Altorf,  ancestor  of  the  great 

1  Ut  si  praefati  sui  homines  quia  non  liberae  conditionis  sunt,  aut  cum 
aqua  frigida,  aut  cum  aqua  calida,  inde  ad  judicium  Dei  exirent,  quid  inde 
Deus  ostenderet  mihi  sufficeret. — Opusc.  adv.  Hincmar.  Laudun.  cap.  xliii. 

2  Si  quis  .  .  .  accusatus  negare  voluerit,  aut  per  duellum  si  liber  est ;  si 
vero  servus,  per  judicium  ferventis  aquae  defendat  se. — L.  Longobard.  Lib. 
I.  Tit.  ix.  §  39. 

3  Et  si  .  .  .  ipse  innocentiae  suae  expurgationem  appellaverit,  liber  vel 
personatus  serviens,  si  infra  patriam  est,  post  septem  dierum  inducias  cum 
totidem  suae  comparitatis  testibus ;  plebejus  autem  et  minoris  testimonii 
rusticus,  aquae  frigidae  se  expurget  judicio. — Recess.  Convent.  Alsat.  Anno 
1051,  §  6.     (Goldast.  Constit.  Imp.  II.  48.) 

4  Regiam  Majestatem  Lib.  IV.  cap.  iii.  §  4. 

*  In  tali  autem  causa  tenetur  se  purgare  is  qui  accusatur  per  dei  judicium 
....  scilicet  per  ferrum  calidum  si  fuerit  homo  liber,  per  aquam  si  fuerit 
rusticus. — De  Legg.  Angliae  Lib.  xiv.  cap.  i. 

6  Text.  Herold.  Tit.  lxxvi. 

7  Mazure  et  Hatoulet,  Fors  de  Beam,  p.  xxxi. 


ORDEAL    OP    COLD    WATER.  ±2\ 

• 
bftiwefl  of  Guelf  in  Italy  and   Knglnnd.  having  taken   part 

in  the  revolt  of  Conrad  the  lounger  Bud  ESrneat  of  Snabia, 

was  forced  by  the  Bmperor  Conrad  the  Salique  to  prove  his 
lanoeenoe  in  this  manner.1  This  may  have  been,  perhaps, 
intended  rather  as  an  humiliation  than  as  a  judicial  proeeed- 
Ing,  for  Guelf  had  been  guilty  of  great  excesses  in  the  con- 
duct of  the  rebellion ;  but  about  the  same  period  Othlonus 
relates  an  incident  in  which  a  man  of  noble  birth  accused 
of  theft  submitted  himself  to  the  cold  water  ordeal  as  a 
matter  of  course  ;3  and  we  find,  nearly  two  centuries  later, 
when  all  the  vulgar  ordeals  were  falling  into  disuse,  that  the 
water  ordeal  was  established  among  the  nobles  of  Southern 
Germany,  as  the  mode  of  deciding  doubtful  claims  on  fiefs.8 

In  1083,  during  the  deadly  struggle  between  the  Empire 
and  the  Papacy,  as  personified  in  Henry  IV.  and  Hildebrand, 
the  imperialists  related  with  great  delight  that  some  of  the 
leading  prelates  of  the  Papal  court  submitted  the  cause  of 
their  chief  to  this  ordeal.  After  a  three  days'  fast,  and 
proper  benediction  of  the  water,  they  placed  in  it  a  boy  to 
represent  the  Emperor,  when  to  their  horror  he  sank  like  a 
stone.  On  referring  the  result  to  Hildebrand,  he  ordered 
a  repetition  of  the  experiment,  which  was  attended  with  the 
same  result.  Then,  throwing  him  in  as  a  representative  of 
the  Pope,  he  obstinately  floated  during  two  trials,  in  spite 
of  all  efforts  to  force  him  under  the  surface,  and  an  oath 
was  exacted  from  them  to  maintain  inviolable  secrecy  as  to 
the  unexpected  result.* 

Perhaps  the  most  extensive  instance  of  the  application 
of  this  form  of  ordeal  was  that  proposed  when  the  sacred 
vessels  were  stolen  from  the  cathedral  church  of  Laon,  as 
related  by  a  contemporary  in.  a  MS.  of  Laon  quoted  by 

1  Conrad.  Ursperg.  sub  Lothar.  Saxon. 

a  Quidam  illustris  vir. — Othlon.  de  Mirac.  quod  nuper  accidit  etc.  (Pa- 
trol. T.  140,  p.  242.) 

3  Juris  Feud.  Alaman.  cap.  Ixxvii.  §  2. 

4  MS    Brit.  Mus.  inserted  by  Pertz  in  Ilugo.  Flaviniac.  Lib.  II. 

19* 


222  THE    ORDEAL. 

• 

Juretus.1  At  a  council  convened  on  the  subject,  Master 
Anselm,  the  most  learned  doctor  of  the  diocese,  suggested 
that,  in  imitation  of  the  plan  adopted  by  Joshua  at  Jericho, 
a  young  child  should  be  taken  from  each  parish  of  the 
town  and  tried  by  immersion  in  consecrated  water.  From 
each  house  of  the  parish  which  should  be  found  guilty, 
another  child  should  be  chosen  to  undergo  the  same  pro- 
cess. When  the  house  of  the  criminal  should  thus  be  dis- 
covered, all  its  inmates  should  be  submitted  to  the  ordeal, 
and  the  author  of  the  sacrilege  would  thus  be  revealed. 
This  plan  would  have  been  adopted  had  not  the  frightened 
inhabitants  rushed  to  the  Bishop  and  insisted  that  the 
experiment  should  commence  with  those  whose  access  to 
the  church  gave  them  the  best  opportunity  to  perpetrate 
the  theft.  Six  of  these  latter  were  accordingly  selected, 
among  whom  was  Anselm  himself.  While  in  prison  await- 
ing his  trial,  he  caused  himself  to  be  bound  hand  and  foot 
and  placed  in  a  tub  full  of  water,  in  which  he  sank  satisfac- 
torily to  the  bottom,  and  assured  himself  that  he  should 
escape.  On  the  day  of  trial,  in  the  presence  of  an  immense 
crowd,  in  the  cathedral  which  was  chosen  as  the  place  of 
judgment,  the  first  prisoner  sank,  the  second  floated,  the 
third  sank,  the  fourth  floated,  the  fifth  sank,  and  Anselm, 
who  was  the  sixth,  notwithstanding  his  previous  experi- 
ment, obstinately  floated,  and  was  condemned  with  his  ac- 
complices, in  spite  of  his  earnest  protestations  of  innocence. 
Although  the  cold-water  ordeal  disappears  from  the 
statute-book  in  civil  and  in  ordinary  criminal  actions  at 
the  same  time  that  the  other  similar  modes  of  purgation 
were  abandoned,  there  is  one  class  of  cases  in  which  it 
maintained  its  hold  upon  the  popular  faith  to  a  much  later 
period.  These  were  the  accusations  of  sorcery  and  witch- 
craft which  form  so  strange  and  prominent  a  feature  of  me- 
diaeval society,  and  its  use  for  this  purpose  may  apparently 

1  Observat.  in  Ivon.  Carnot.  Epist.  74. 


ORDEAL  OP  COLD  WATER.  223 

|«  traced  to  various  causes.  For  such  crimes,  drowning 
was  the  punishment  Inflicted  by  the  customs  of  tin-  Franks; 
as  soon  as  fchey  had  lost  the  respect  for  Individual  liberty 
of  action  which  excluded  personal  punishments  from  their 
original  code;1  and  in  addition  to  the  general  belief  that 

1  Lodharius  .  .  .  Gerbergam,  more  rnaleficomm,  in  Arari  mergi  prn>- 
cepit.— Nithardi  Hist.  Lib.  I.  Ann.  834. 

The  Salique  law  merely  inflicts  fines  in  cases  of  witchcraft,  even  when  the 
offender  had,  according  to  a  widely  spread  superstition  of  the  times,  eaten 
the  victim  bodily  (L.  Emendat.  cap.  xxi.  $  3  ;  cap.  lxvii.  §  3).  So  also  the 
L.  Ripuarior.  (Tit.  lxxxiii.).  Charlemagne  allowed  suspected  persons  to  be 
tortured  for  confession,  provided  the  process  was  not  carried  to  the  point  of 
death,  and  after  conviction  they  were  to  be  imprisoned  until  amendment 
(Capit.  ii.  Ann.  805,  §  xxv.).  The  legislation  of  other  races  was  very  various 
in  this  respect.  The  Ostrogoths  visited  all  such  practices  with  death  (Cod. 
Theoderici  cap.  cvm.),  relaxing  somewhat  on  the  laws  of  Constantine,  who 
sought  to  extirpate  them  with  fire  and  torments  (Const.  3,  6,  7,  C.  De  Male- 
ficis  ix.  18).  The  Wisigoths  more  humanely  contented  themselves  with 
stripes,  shaving  the  head,  and  exposure  (L.  Wisigoth.  Lib.  vi.  Tit.  ii.  cap.  3). 
The  Lombard  law  (Lib.  II.  Tit.  xxxviii.  §  2)  ordered  them  to  be  sold  as  slaves 
beyond  the  boundaries  of  the  province,  and  the  earliest  legislator,  King 
Rotharis,  denounced  severe  penalties  against  those  who  put  women  to  death 
under  the  absurd  belief  that  they  could  eat  living  men — "Quod  Christianis 
mentibus  nullatenus  est  credendum,  nee  possibile  est,  ut  hominem  mulier 
vivum  intrinsecus  possit  comedere"  (L.  Longobard.  Lib.  i.  Tit.  xi.  §  9). 
The  Pagan  Saxons  entertained  a  similar  superstition,  for  which  they  were  in 
the  habit  of  burning  witches  and  sorcerers,  and  even  of  eating  them  in  turn, 
as  we  learn  from  the  civilizing  and  Christianizing  capitulary  of  Charlemagne  : 
"  Si  qui?,  a  diabolo  deceptus,  crediderit,  secundum  morem  paganorum,  virum 
aliquem  aut  feminam  strigam  esse  et  homines  comedere,  et  propter  hoc  ipsam 
incenderit,  vel  carnem  ejus  ad  comedendum  dederit,  vel  ipsam  comederit, 
capitis  sententia  punietur  etc."  (Capit.  de  Partibus  Saxonia),  Ann.  789, 
§  vi.)  •  The  Anglo-Saxons  merely  banished  the  witch  who  would  not  reform, 
with  the  penalty  of  death  for  disobedience  (Laws  of  Edward  and  Guthrum, 
Tit.  xi.  ;  Ethelred,  vi.  §  7;  Cnut.  Secular,  cap.  iv.)  ;  unless  the  death  of  a 
victim  had  been  compassed,  when  the  offender  was  executed  (iEthelstan,  I. 
§  6),  or  delivered  to  the  kindred  to  be  punished  at  their  pleasure  (Henrici  I. 
Tit.  lxxi.  §  1).  The  primitive  law  of  Scotland,  as  given  by  Boetius,  was 
more  severe,  condemning  to  the  stake  all  engaged  in  such  practices  (Kenethi 
Leg.  Civil,  cap.  18 — Spelman.  Concil.  I.  341)  ;  while  in  Hungary,  for  ordi- 
nary witchcraft,  on  a  first  offence  the  criminal  was  only  handed  to  the  Bishop 
to  be  reformed  by  fasting  and  the  catechism  ;  a  second  offence  was  visited 
with  branding  on  the  forehead,  head,  and  back,  in  the  form  of  a  cross  with  a 


224  THE    ORDEAL. 

the  pure  element  refused  to  receive  those  who  were  tainted 
with  crime,  there  was  in  this  special  class  of  cases  a 
widely  spread  superstition  that  adepts  in  sorcery  and 
magic  lost  their  specific  gravity.  Pliny  mentions  a  race  of 
enchanters  on  the  Euxine  who  were  lighter  than  water — 
"  eosdem  non  posse  mergi .  .  .  ne  veste  quidam  degravatos ;" 
and  Stephanus  Byzantinus  describes  the  inhabitants  of 
Thebe  as  magicians  who  could  kill  with  their  breath,  and 
floated  when  thrown  into  the  sea.1  This  whimsical  opinion 
was  perpetuated  to  a  comparatively  late  period,  and  gave 
rise  to  a  species  of  ordeal  known  as  the  trial  by  balance, 
in  which  the  suspected  sorcerer  was  weighed  to  ascertain 
his  guilt,  enabling  him,  we  may  presume,  to  escape,  except 
when  the  judges,  determined  to  procure  a  conviction,  man- 
church  key :  hut  when  life  was  attempted  in  such  practices,  the  sorcerer  was 
delivered  to  the  sufferer  or  his  friends  to  he  treated  at  their  discretion  (Legg. 
S.  Stephani,  c.  xxxi.  xxxii).  The  progress  of  enlightenment  in  Hungary 
was  rapid,  for,  hy  the  end  of  the  century,  we  find  King  Coloman  contenting 
himself  with  the  brief  remark,  "  De  strigis  vero  quae  non  sunt,  nulla  quaestio 
fiat"  (Decret.  Coloman.  c.  20 — Batthyani,  Legg.  Eccles.  Hung.  T.  I.p.  455). 

The  cause  of  humanity  gained  but  little  when,  all  such  accusations  being 
included  in  the  convenient  general  charge  of  heresy,  for  five  hundred  years 
luckless  sharpers  and  dupes  were  committed  pitilessly  to  the  flames.  King 
James  I.  briefly  dismisses  the  question  of  their  punishment  with  the  appro- 
priate remark,  "Passim  obtinuit  ut  crementur.  Quanquam  in  hac  re  sua 
cuique  genti  permittenda  est  consuetude"  (Demonologias  Lib.  III.  c.  vi.) 
Even  in  the  enlightenment  of  the  seventeenth  century,  who  can  read  without 
grim  disgust  and  wonder  the  terrible  farce  of  the  trial  of  Urbain  Grandier, 
hurrying,  amid  details  ludicrously  revolting,  its  unfortunate  victim  through 
torture  to  the  stake,  to  gratify  the  quenchless  malice  of  Cardinal  Riche- 
lieu ?  Nor  did  the  tragedy  cease  for  yet  a  hundred  years.  In  the  middle 
of  the  eighteenth  century,  Muratori  could  still  write — "  Novimus  etiam  inno- 
centes  praesertim  mulieres  interdum  in  veneficii  suspicionem  adductas  fuisse 
in  quibusdam  Christiani  orbis  partibus,  et  aut  igni  datas,  aut  mortis  pericu- 
lum  vix  evasisse  :  neque  alia  de  caussa  reas  vulgo  creditas  quam  quod  sub 
fasce  annorum  illarum.  humeri  jam  curvarentur." — (Antiq.  Ital.  Dissert.  59.) 

Perhaps  the  superstition  of  the  devouring  of  living  men  by  witches  may 
find  its  last  lingering  remnants  in  the  vampirism  of  Eastern  Europe. 

1  Ameilhon,  de  l'Epreuve  de  l'Eau  Froide. 


ORDEAL  OP  COLD  WATER.  225 

aged  to  clinic  the  vigilance  of  the  inspectors.1    To  the 

Concurrence   of  these   notions  we   may  attribute   the    fact 
that  when  the  cold-water  ordeal  was  abandoned,  in  the 

thirteenth  century,  as  a  judicial  practice  ill  ordinary  C 
it  still  maintained  its  place  as  a  special  mode  of  trying 
those  unfortunate  persona  whom  their  own  folly,  or  the 
malice  and  tears  of  their  neighbors,  pointed,  out  as  witches 
and  sorcerers.9  No  less  than  a  hundred  years  after  the 
efforts  of  Innocent  III.  had  virtually  put  an  end  to  all  the 
other  forms  of  vulgar  ordeals,  we  find  Louis  Hutin  ordering 
its  emplo3'ment  in  these  cases.3  At  length,  however,  it  fell 
into  desuetude,  until  the  superstitious  panic  of  witchcraft, 
which  took  possession  of  the  popular  mind  in  the  second 
half  of  the   sixteenth  century  caused  its  revival.4     The 

1  Kickius  (Defens.  Probae  Aq.  Frigid.  §  41),  writing  in  1594,  speaks  of  this 
as  a  common  practice  in  many  places,  and  gravely  assures  us  that  very  large 
and  fat  women  had  been  found  to  weigh  only  thirteen  or  fifteen  pounds. 
Konigswarter  (op.  cit.  p.  186)  states  that  as  late  as  1728,  at  Szegedin  in 
Hungary,  thirteen  persons  suspected  of  sorcery  were,  by  order  of  court, 
subjected  to  the  ordeal  of  cold  water,  and  then  to  that  of  the  balance.  At 
Oudewater  in  Holland,  according  to  the  same  authority,  the  scales  used  on 
these  occasions  are  still  to  be  seen.  A  modification  of  the  trial  by  balance 
consisted  in  putting  the  accused  into  one  scale  and  a  Bible  into  the  other. 
(Collin  de  Plancy,  s.  v.  Bibliomancie.) 

As  the  simplest,  least  painful,  and  perhaps  most  easily  manipulated  form 
of  ordeal,  this  was  monopolized  in  India  by  the  Brahmins.  As  practised  by 
them,  the  suitor  was  weighed,  and  then,  after  certain  religious  ceremonies, 
he  was  weighed  again.  If  he  had  lost  weight  meanwhile,  he  was  pronounced 
victorious,  but  if  his  density  remained  stationary,  he  was  condemned. 
(Ayeen  Akbery,  II.  496.) 

*J  In  earlier  times,  various  other  modes  of  proof  were  habitually  practised. 
Among  the  Lombards,  King  Rotharis  prescribed  the  judicial  combat  (L. 
Longobard.  Lib.  i.  Tit.  xvi.  §  2).  The  Anglo-Saxons  (iEthelstan,  cap.  vi.) 
direct  the  triple  ordeal,  which  was  either  red-hot  iron  or  boiling  water. 

3  Hie  adversus  quern  maleficium  factum  fuerit  vel  proditio,  si  alium  accu- 
saverit,  de  quo  aliqua  suspicio  sit  curia;,  accusatus  recipiet  judicium  aqua? 
frigidae. — Regest.  Ludovici  Hutini  (ap.  Cangium). 

4  Scribonius,  writing  in  1583,  speaks  of  it  as  a  novelty  "utpote  qua?  in 
aliis  Germania?  partibus  vix  audita  esset;"  but  Neuwald  assures  us  that  it 
had  been  universally  employed  for  eighteen  years  previous — "  sed  in  West- 
phalia ferme  ante  annos  octodecim  est  passim  observata." 


226  THE     ORDEAL. 

crime  was  one  so  difficult  to  prove  judicially,  and  the 
ordeal  offered  so  ready  and  so  satisfactory  a  solution  to 
the  doubts  of  timid  and  conscientious  judges,  that  its 
extensive  use  is  not  to  be  wondered  at.  The  professed 
Daemonographers,  Bodin,  Binsfeld,  Godelmann,  and  others, 
either  openly  rejected  it,  or  omitted  all  reference  to  it,  but 
still  it  did  not  want  defenders.  In  1583,  a  certain  Scribo- 
nius,  on  a  visit  to  Lemgow,  saw  three  unfortunates  burnt 
as  witches,  and  three  other  women,  the  same  day,  exposed 
to  the  ordeal  on  the  accusation  of  those  executed.  He 
describes  them  as  stripped  naked,  hands  and  feet  bound 
together,  right  to  left,  and  then  cast  upon  the  river,  where 
they  floated  like  logs  of  wood.  Profoundly  impressed  with 
the  miracle,  in  a  letter  to  the  magistrates  of  Lemgow,  he 
expresses  his  warm  approbation  of  the  proceeding  and 
endeavors  to  explain  its  rationale,  and  to  defend  it  against 
unbelievers.  Sorcerers,  from  their  intercourse  with  Satan, 
partake  of  his  nature ;  he  resides  within  them,  and  their 
human  attributes  become  altered  to  his ;  he  is  an  imponder- 
able spirit  of  air,  and  therefore  they  likewise  become  lighter 
than  water.  Two  3-ears  later,  Hermann  Neuwald  published 
a  tract  in  answer  to  this,  gravely  confuting  the  arguments 
advanced  by  Scribonius,  who,  in  1588,  returned  to  the 
attack  with  a  larger  and  more  elaborate  treatise  in  favor 
of  the  ordeal.  In  1594,  a  more  authoritative  combatant 
entered  the  arena — Jacob  Rickius,  a  learned  jurisconsult 
of  Cologne,  who,  as  judge  in  the  court  of  Bonn,  had  ample 
opportunity  of  considering  the  question,  and  of  putting 
his  convictions  into  practice.1     He  describes  vividly  the 

1  These  various  tracts  were  collected  together  and  reprinted  in  1686  at 
Leipsic,  in  1  vol.  4to.  It  contains  Rickius's  "  Compendiosa  certisque  modis 
astricta  defensio  Probae  Aqua?  Frigidse,  quae  in  examinatione  raaleficarum 
plerique  judices  hodie  utuntur;"  the  "  Epistola  de  Purgatione  Sagarum 
super  Aquam  frigidam  projectarum"  of  Scribonius;  and  Neuwald's  "Exe- 
gesis Purgationis  sive  Examinis  Sagarum,  &c."  There  are  few  more  curious 
pictures  of  the  age  to  be  found  by  the  student  of  the  mysteries  of  human 
intelligence. 


ORDEAL  OF  COLD  WATER.  227 

perplexities  of  the  judges  hesitating  between  the  enormity 
of  the  crime  and  the  worthlessness  of  the  evidence,  and 
his  elaborate  diseussions  of  all  the  argument!  in  its  favor 
may  be  condensed   into  this:  that  the  offence  is  so  difficult 

of  proof  that  there  is  no  other  certain  evidence  than  the 
ordeal ;  that  without  it  we  should  be  destitute  of  absolute 
proof,  which  wrould  be  an  admission  of  the  superiority  of 
the  Devil  over  God,  and  that  anything  would  be  preferable 
to  such  a  conclusion.  He  states  that  he  never  administered 
it  when  the  evidence  without  it  was  sufficient  for  conviction, 
nor  when  there  was  not  enough  other  proof  to  justify  the 
use  of  torture ;  and  that  in  all  cases  it  was  employed  as  a 
prelude  to  torture — " praeparandum  et  muniendum  torturae 
via m" — the  latter  being  frequently  powerless  in  consequence 
of  diabolical  influences.  The  sickening  instances  which  he 
details  with  much  complacency  as  irrefragable  proofs  of 
his  positions  show  how  frequent  and  how  murderous  were 
the  cases  of  its  employment,  but  wrould  occupy  too  much 
space  for  recapitulation  here ;  while  the  learning  displayed 
in  his  constant  citations  from  the  Scriptures,  the  Fathers, 
the  Roman  and  the  Canon  Law,  is  in  curious  contrast  with 
the  superstitious  cruelty  of  his  acts  and  doctrines. 

In  France,  the  central  powrer  had  to  be  invoked  to  put 
an  end  to  the  atrocity  of  such  proceedings.  In  1588,  an 
appeal  was  taken  to  the  supreme  tribunal  from  a  sentence 
pronounced  by  a  Champenois  court,  ordering  a  prisoner  to 
undergo  the  experiment,  and  the  Parlement  in  December, 
1G01,  registered  a  formal  decree  against  the  practice;  an 
order  which  it  found  necessary  to  repeat,  August  10th,  1641.1 
That  this  latter  was  not  uncalled  for,  we  may  assume  from 
the  testimony  of  the  celebrated  Jerome  Bignon,  who,  writing 
nearly  at  the  same  time,  sa}^s  that,  to  his  own  knowledge, 
within  a  few  years,  judges  were  in  the  habit  of  elucidating 

1  Konigswarter,  op.  cit.  p.  176. 


22S  TIIE    ORDEAL. 

doubtful  cases  in  this  manner.1  In  England,  James  I.  grati- 
fied at  once  his  conceit  and  his  superstition  by  eulogizing 
the  ordeal  as  an  infallible  proof  in  such  cases.  His  argu- 
ment was  the  old  one,  which  pronounced  that  the  pure 
element  would  not  receive  those  who  had  renounced  the 
privileges  of  their  baptism,3  and  his  authority  no  doubt 
gave  encouragement  to  innumerable  instances  of  cruelty 
and  oppression.  How  slowly  the  belief  was  eradicated 
from  the  minds  of  even  the  educated  and  enlightened  may 
be  seen  in  a  learned  inaugural  thesis  presented  by  J.  P. 
Lang,  in  1661,  for  the  Licentiate  of  Laws  in  the  University 
of  Basel,  in  which,  discussing  incidentally  the  question  of 
the  cold-water  ordeal  for  witches,  he  concludes  that  perhaps 
it  is  better  to  abstain  from  it,  though  he  cannot  question 
its  efficaciousness  as  a  means  of  investigation.3  Even  in 
the  middle  of  the  eighteenth  century,  the  learned  and  pious 
Muratori  affirms  his  reverent  belief  in  the  miraculous  con- 
victions recorded  by  the  mediaeval  writers  as  wrought  in  this 
manner  by  the  judgment  of  God,4  and  he  further  informs  us 
that  it  was  common  throughout  Transylvania  in  his  time  ;5 
while  in  West  Prussia,  as  late  as  1745,  the  Synod  of  Culm  de- 
scribes it  as  a  popular  abuse  in  common  use,  and  stringently 
forbids  it  for  the  future.6    We  have  already  alluded  to  the 

1  "  Porro,  nostra  memoria,  paucis  abhinc  annis,  solebant  judices  reos 
maleficii  accusatos  mergere,  pro  certo  habentes  incertum  crimen  hac  ratione 
patefieri." — Notae  ad  Legem  Salicam. 

"  Tanquam  aqua  suum  in  sinum  eos  non  admitteret,  qui  excussa  baptismi 
aqua,  se  omni  illius  sacramenti  beneficio  ultro  orbarunt. — Demonologiae  Lib. 
in.  cap.  vi. 

3  Tutius  erit  ab  eo  abstinere,  neque  refragatur  quod  saepe  per  hoc  tentamen 
Veritas  explorata  fuit. — Dissert.  Inaug.  de  Torturis  Th.  xvm.  §  xi.  Basil. 
1661. 

*  Quibus  in  exemplis  vides,  sese  Deum  accommodasse  interdum  ad  homi- 
num  piam  fidem  et  preces. — Antiq.  Ital.  Dissert.  38. 

5  Si  vera  sunt  etiam  quas  interdum  audivi,  in  Transylvania,  perdurat  adhuc 
experimentum  aquae  ad  dignoscendas  sagas,  sive  incantatriees  maleficas, 
quarum  ingens  copia  ibi  traditur  esse.— Ibid. 

6  Qui  ex  levi  suspicione,  in  tali  crimine  delatas,  nee  confessas,  nee  con- 


oh  D  i:  a  i,    01    00  LD    W  \  t  KB.  299 

employment  <»r  the  water  ordeal  by  an  Hungarian  tribunal 
ms  late  ms  the  eighteenth  century.  Although,  witliin  the 
hist  hundred  years,  it  Iims  disappeared  from  the  authorized 
kegal  procedures  of  Europe,  still  the  popular  mind  has  not 
as  yet  altogether  overcome  the  superstitions  and  prejudices 
of  so  many  ages,  and  occasionally  in  some  benighted  spot 
mii  outrage  occurs  to  show  us  that  mediceva]  ignorance  and 
brutality  still  linger  amid  the  triumphs  of  modern  civiliza- 
t  ion.  I  n  1 8 1 .").  Belgium  was  disgraced  by  a  trial  of  the  kind 
performed  on  an  unfortunate  person  suspected  of  witch- 
OTafl  ;  mihI  in  1886,  the  populace  of  Hela,  near  Dantzic, 
twice  plunged  into  the  sea  an  old  woman  reputed  to  be  a 
Borceress,  and  as  the  miserable  creature  persisted  in  rising 
to  the  surface,  she  was  pronounced  guilty,  and  beaten  to 
death.1 

Perhaps  we  may  class  as  a  remnant  of  this  superstition 
a  custom  described  by  a  modern  traveller  as  universal  in 
Southern  Russia.  When  a  theft  is  committed  in  a  house- 
hold, the  servants  are  assembled,  and  a  sorceress,  or  vorogeia, 
is  sent  for.  Dread  of  what  is  to  follow  generally  extorts  a 
confession  from  the  guilty  party  without  further  proceed- 
ings, but  if  not,  the  vorogeia  places  on  the  table  a  vase  of 
water  and  rolls  upas  many  little  balls  of  bread  as  there  are 
suspected  persons  present.  Then,  taking  one  of  the  balls, 
she  addresses  the  nearest  servant — "  If  you  have  committed 
the  theft,  this  ball  will  sink  to  the  bottom  of  the  vase,  as 
will  your  soul  in  Hell ;  but  if  you  are  innocent,  it  will  float 
on  the  water."  The  truth  or  falsehood  of  this  assertion  is 
never  tested,  for  the  criminal  invariably  confesses  before 
his  turn  arrives  to  undergo  the  ordeal.3 

victas,  ad  torturap,  supernatationem  aquarum,  et  alia  eruendae  veritatis 
media,  tandem  ad  ipsam  mortem  condemnare  .  .  .  non  verentur,  exempla 
proh  dolor !  pluriraa  testantur. — Synod.  Cuhnens.  et  Pomesan.  ann.  1745, 
c.  v.     (Hartzheim.  Concil.  German.  X.  510.) 

1  Konigswartcr,  op.  cit.  p.  177. 

-  Ilartausen,  Etudes  sur  la  Russie.    (Du  Boy?,  Droit  Criminel  des  Peuplea 
Modernes,  I.  256.) 
20 


230  THE    ORDEAL. 

The  ordeal  of  the  cross  (judicium  cruris,  stare  ad  crucem) 
was  one  of  simple  endurance.  The  plaintiff  and  defendant, 
after  appropriate  religious  ceremonies  and  preparation, 
stood  with  uplifted  arms  before  a  cross,  while  divine  service 
was  performed,  victory  being  adjudged  to  the  one  who  was 
able  longest  to  maintain  his  position.1  The  earliest  allu- 
sion to  it  which  I  have  observed  occurs  in  a  Capitulary  of 
Pepin-le-Bref,  in  152,  where  it  is  prescribed  in  cases  of 
application  by  a  wife  for  dissolution  of  marriage.3  Char- 
lemagne appears  to  have  regarded  it  with  much  favor ;  for 
he  not  only  frequently  refers  to  it  in  his  edicts,  but,  when 
dividing  his  mighty  empire,  in  806,  he  directs  that  all  terri- 
torial disputes  which  may  arise  in  the  future  between  his 
sons  shall  be  settled  in  this  manner.3  An  example  occur- 
ring during  his  reign  shows  the  details'  of  the  process.  A 
controversy  between  the  Bishop  and  citizens  of  Verona, 
relative  to  the  building  of  certain  walls,  was  referred  to  the 
decision  of  the  cross.  Two  young  ecclesiastics,  selected  as 
champions,  stood  before  the  sacred  emblem  from  the  com- 
mencement of  mass ;  at  the  middle  of  the  Passion,  Aregaus, 
who  represented  the  citizens,  fell  lifeless  to  the  ground, 
while  his  antagonist,  Pacificus,  held  out  triumphantly  to 
the  end,  and  the  Bishop  gained  his  cause,  as  ecclesiastics 
were  wont  to  do.4 

When  a  person  desired  to  discredit  the  compurgators  of 

1  A  formula  for  judgments  obtained  in  this  manner  by  order  of  court,  in 
cases  of  disputed  title  to  land,  occurs  in  the  Formula)  Bignonianae,  No.  xii. 

1  Si  qua  mulier  se  reclamaverit  quod  vir  suus  nunquam  cum  ea  mansisset, 
exeant  inde  ad  crucem,  et  si  verum  fuerit,  separentur,  et  ilia  faciat  quod 
vult. — Capit.  Pippini  ann.  752,  §  xvii. 

3  Si  caussa  vel  intentio  sive  controversia  talis  inter  partes  propter  ter- 
minos  aut  confinia  regnorum  orta  fuerit  quae  hominum  testimonio  declarari 
vel  definiri  non  possit,  tunc  volumus  ut  ad  declarationem  rei  dubiao,  judicio 
crucis,  Dei  voluntas  et  rerum  Veritas  inquiratur. — Chart.  Division,  cap.  xiv. 
The  allusions  to  it  throughout  the  Capitularies  of  this  monarch  are  very 
frequent ;  for  instance,  Capit.  ann.  779,  §  x.  ;  Capit.  iv.  ann.  803,  §§  iii.  vi. ; 
in  L.  Longobard.  Lib.  n.  Tit.  xxviii.  §  3;  Tit.  Iv.  §  25,  etc. 

4  Ughelli,  Italia  Sacra,  T.  V.  p.  610  {ap.  Baluz.  Not.  ad  Libb.  Capit.). 


ORH  K  A  L     Of     T  UK     CROSS.  281 

mi  adversary  he  had  tin1  right  to  accuse  them  of  perjury, 
and  the  main  question  *ras  then  adjourned  until  this  second- 
ary point  was  decided  by  this  process.1  In  a  similar  spirit, 
Witnesses  too  infirm  to  undergo  the  battle-trial,  by  which  in 
the  regular  process  of  law  they  were  bound  to  substantiate 
their  testimony,  were  allowed,  by  a  Capitulary  of  816,  to 
select  the  ordeal  of  the  cross,  with  the  further  privilege,  in 
cases  of  extreme  debility,  of  substituting  a  relative  or  other 
champion,  whose  robustness  promised  an  easier  task  for 
the  Divine  interference." 

A  slight  variation  of  this  form  of  ordeal  consisted  in 
Standing  with  the  arms  extended  in  the  form  of  a  cross, 
While  certain  portions  of  the  service  were  recited.  In  this 
manner,  St.  Lioba,  Abbess  of  Bischoffsheim,  triumphantly 
vindicated  the  purity  of  her  flock,  and  traced  out  the 
offender,  when  the  reputation  of  her  convent  was  imperilled 
by  the  discovery  of  a  new-born  child  drowned  in  a  neigh- 
boring pond.3 

The  sensitive  piety  of  Louis-le-Debonnaire  was  shocked 
at  this  use  of  the  cross,  as  tending  to  bring  the  Christian 
symbol  into  contempt,  and  in  816,  soon  after  the  death  of 
Charlemagne,  he  prohibited  its  continuance,  at  the  Council 
of  Aix-la-Chapelle  ;4  an  order  which  was  repeated  by  his  son, 
the  Emperor  Lothair.5  Baluze,  however,  considers,  with 
apparent  reason,  that  this  command  was  respected  only  in 

1  Si  ille  homo  cujus  causa  jurata  fuerit,  dicere  voluerit  quod  ille  qui  juravit 
se  sciens  perjurasset,  stent  ad  crucem. — Capit.  Car.  Mag.  incerti  anni  c.  x. 
(Hartzheim  Concil.  German.  I.  426.) 

2  Namque  si  debiliores  ipsi  testes  fuerint,  tunc  ad  crucem  examinentur. 
Nam  si  majoris  aetatis,  et  non  possint  ad  crucem  stare,  tunc  mittant  aut  filios 
aut  parentes,  aut  qualescunque  homines  possint,  qui  pro  eis  hoc  tendunt. — 
Capit.  Lud.  Pii  ann.  816,  §  i.     (Eccardi  L.  Francorum,  pp.  183,  184.) 

3  Rudolph.  Fuldens.  Vitae  S.  Liobae  cap.  xv.  (Du  Cange,  s.  v.  Cruris 
Judicium.) 

*  Sancitum  est  ut  nullus  deinceps  quamlibet  examinationem  crucis  facere 
praesumat,  ne  quae  Christi  passione  glorificata  est,  cujuslibet  temeritate  con- 
teraptui  habeatur. — Concil.  Aquisgran.  cap.  xvii. 

*  L.  Longobard.  Lib.  It.  Tit.  lv.  §  32. 


232  THE     ORDEAL. 

the  Rhenish  provinces  and  in  Italy, -from  the  fact  that  the 
manuscripts  of  the  Capitularies  belonging  to  those  regions 
omit  the  references  to  the  ordeal  of  the  cross,  which  are 
retained  in  the  copies  used  in  the  other  territories  of  the 
Prankish  empire.1  Louis  himself  would  seem  at  length  to 
have  changed  his  opinion ;  for,  in  the  final  division  of  his 
succession  between  his  sons,  he  repeats  the  direction  of 
Charlemagne  as  regards  the  settlement  of  disputed  bound- 
aries.3' The  procedure,  however,  appears  to  have  soon  lost 
its  popularity,  and  indeed  never  to  have  obtained  the  wide 
and  deeply-seated  hold  on  the  veneration  of  the  people 
enjoyed  by  the  other  forms  of  ordeal.  We  see  little  of  it  at 
later  periods,  except  the  trace  it  has  left  in  the  proverbial 
allusion  to  an  experimentum  cruris. 

The  ordeal  of  consecrated  bread  or  cheese  {judicium 
offae,  panis  conjuratio,  the  corsnsed  of  the  Anglo-Saxons) 
was  administered  by  presenting  to  the  accused  a  piece  of 

1  Not.  ad  Libb.  Capit.  Lib.  I.  cap.  103.  Tbis  derives  additional  proba- 
bility from  the  text  cited  immediately  above,  relative  to  the  substitution  of 
this  ordeal  for  the  duel,  -which  is  given  by  Eckhardt  from  an  apparently 
contemporary  manuscript,  and  which,  as  we  have  seen,  is  attributed  to 
Louis-le-Debonnaire  in  the  very  year  of  the  Council  of  Aix-la-Chapelle.  It 
is  not  a  simple  Capitulary,  but  an  addition  to  the  Salique  Law,  which  invests 
it  with  much  greater  importance.  Lindenbruck  (Cod.  Legum  Antiq.  p.  355) 
gives  a  different  text,  purporting  likewise  to  be  a  supplement  to  the  Law, 
made  in  816,  which  prescribes  the  duel  in  doubtful  cases  between  laymen, 
and  orders  the  ordeal  of  the  cross  for  ecclesiastical  causes — "in  Ecclesi- 
asticis  autem  negotiis,  crucis  judicio  rei  Veritas  inquiratur" — and  allows  the 
same  privilege  to  the  "  imbecillibus  aut  infirmis  qui  pugnare  non  valent." 
Baluze's  collection  contains  nothing  of  the  kind  as  enacted  in  816,  but  under 
date  of  819  there  is  a  much  longer  supplement  to  the  Salique  law,  in  which 
cap.  x.  presents  the  same  general  regulations,  almost  verbatim,  except  that 
in  ecclesiastical  affairs  the  testimony  of  witnesses  only  is  alluded  to,  and  the 
judicium  crucis  is  altogether  omitted.  The  whole  manifestly  shows  great 
confusion  of  legislation. 

2  Chart.  Divisionis  ann.  837  cap.  x.  The  words  used  are  identical  with 
those  of  Charlemagne,  with  the  substitution  of  "  vexillo  crucis"  for  "judicio 
crucis."  The  word  vexiUum  is  frequently  employed  in  the  sense  of  signitm 
or  testimonium  in  signatures  to  diplomas. 


ORDEAL    or     B  B  B  A  I>.  239 

bread  (generally  of  barley)  or  of  cheese)  about  an  ounce  in 

Weight,1  over  which  prayers  ;ni<l  :i<ljur:it  ions  had  been  pro- 
nounced. After  appropriate  religions  ceremonies,  Including 
the  communion,  the  morsel  was  eaten,  the  event  being  de- 
termined by  the  ability  of  the  accused  to  swallow  it.  Tnil 
depended  of  course  on  the  imagination,  and  we  can  readily 
understand  how,  in  those  times  of  faith,  the  impressive 
observances  which  accompanied  the  ordeal  would  affect 
the  criminal,  who,  conscious  of  guilt,  stood  up  at  the  altar, 
took  the  sacrament,  and  pledged  his  salvation  on  the  truth 
of  his  oath.  The  mode  by  which  a  conviction  was  expected 
may  be  gathered  from  the  forms  of  the  exorcism  employed, 
of  which  a  number  have  been  preserved. 

"0  Lord  Jesus  Christ,  .  .  .  grant,  we  pray  thee,  by  thy  holy  name, 
that  he  who  is  guilty  of  this  crime  in  thought  or  in  deed,  when  this 
creature  of  sanctified  bread  is  presented  to  him  for  the  proving  of  the 
truth,  let  his  throat  he  narrowed,  and  in  thy  name  let  it  be  rejected 
rather  than  devoured.  And  let  not  the  spirit  of  the  Devil  prevail  in 
this  to  subvert  the  judgment  by  false  appearances.  But  he  who  is 
guilty  of  this  crime,  let  him,  chiefly  by  virtue  of  the  body  and  blood 
of  our  Lord  which  he  has  received  in  communion,  when  he  takes  the 
consecrated  bread  or  cheese  tremble,  and  grow  pale  in  trembling,  and 
shake  in  all  his  limbs  ;  and  let  the  innocent  quietly  and  healthfully, 
with  all  ease,  chew  and  swallow  this  morsel  of  bread  or  cheese, 
crossed  in  thy  holy  name,  that  all  may  know  that  thou  art  the  just 
Judge,"  &c.2 

And  even  more  whimsical  in  its  devout  impiety  is  the 
following : — 

"  0  God  Most  High,  who  dwellest  in  Heaven,  who  through  thy 
Trinity  and  Majesty  hast  thy  just  angels,  send,  0  Lord,  thy  Angel 
Gabriel  to  stick  in  the  throat  of  those  who  have  committed  this  theft, 
that  they  may  neither  chew  nor  swallow  this  bread  and  cheese  created 
by  Thee.  I  invoke  the  patriarchs,  Abraham,  Isaac,  and  Jacob,  with 
twelve  thousand  Angels  and  Archangels.     I  invoke  the  four  Evan- 

1  Half  an  ounce,  according  to  a  formula  in  a  MS.  of  the  ninth  century, 
printed  by  Dom  Gerbert  (Patrolog.  138,  1142). 

2  Exorcismus  panis  hordeacei  vel  casei.     Baluze,  II.  655. 

20* 


234  THE     ORBEAL. 

gelists,  Matthew,  Mark,  Luke,  and  John.  I  invoke  Moses  and  Aaron, 
who  divided  the  sea.  That  they  may  hind  to  their  throats  the  tongues 
of  the  men  who  have  committed  this  theft,  or  consented  thereto.  If 
they  taste  this  hread  and  cheese  created  by  Thee,  may  they  tremble 
like  a  trembling  tree,  and  have  no  rest,  nor  keep  the  bread  and  cheese 
in  their  mouths,  that  all  may  know  Thou  art  the  Lord  and  there  is 
none  other  but  Thee!'" 

A  striking  illustration  of  the  superstitions  connected 
with  this  usage  is  found  in  the  story  related  by  most  of 
the  English  chroniclers  concerning  the  death  of  the  pow- 
erful Godwin,  Duke  of  Kent,  father  of  King  Harold,  and 
in  his  day  the  king-maker  of  England.  As  he  was  dining 
with  his  royal  son-in-law,  Edward  the  Confessor,  some 
trivial  circumstance  caused  the  king,  to  repeat  an  old  accu- 
sation that  his  brother  Alfred  had  met  his  death  at  God- 
win's hands.  The  old  but  fiery  Duke,  seizing  a  piece  of 
bread,  exclaimed :  "  May  God  cause  this  morsel  to  choke 
me  if  I  am  guilty  in  thought  or  in  deed  of  this  crime." 
Then  the  king  took  the  bread  and  blessed  it,  and  Godwin, 
putting  it  in  his  mouth,  was  suffocated  by  it,  and  fell  dead.3 
A  poetical  life  of  Edward  the  Confessor,  written  in  the 
thirteenth  century,  gives  a  graphic  picture  of  the  death  of 
the  Duke  and  the  vengeful  triumph  of  the  King: — 

1  Muratori,  Antiq.  Ital.  Dissert.  38. 

■  This  account,  with  unimportant  variations,  is  given  by  Roger  of  Wen- 
doVer,  ann.  1054,  Matthew  of  Westminster,  ann.  1054,  the  Chronicles  of 
Croyland,  ann.  1053,  Henry  of  Huntingdon,  ann.  1053,  and  William  of 
Malmesbury,  Lib.  n.  cap.  13;  which  shows  that  the  legend  was  widely 
spread  and  generally  believed,  although  the  Anglo-Saxon  Chronicle,  ann. 
1052,  and  Roger  de  Hoveden,  ann.  1053,  in  mentioning  Godwin's  death, 
make  no  allusion  to  its  being  caused  in  this  manner.  A  similar  reticence  is 
observable  in  an  anonymous  Life  of  Edward  (Harleian  MSS.  526),  p.  408  of 
the  collection  in  Rer.  Britann.  Script.,  and  although  this  is  perhaps  the  best 
authority  we  have  for  the  events  of  his  reign,  still  the  author's  partiality  for 
the  family  of  Godwin  renders  his  evidence  in  this  respect  liable  to  suspicion. 

No  great  effort  of  scepticism  is  requisite  to  suggest  that  Edward,  tired  of 
the  tutelage  in  which  he  was  held,  may  have  made  way  with  Godwin  by 
poison,  and  then  circulated  the  story  related  by  the  annalists  to  a  credulous 
generation. 


OB  DBA  i.    <>  r    Rfi  I  ad. 

"  L'aleine  e  parole  pert 

Par  K>  morsel  ki  form  s 'abort. 

Mor/.  est  li  MOglanl  ffliin  ; 

Mut  out  force  la  benakun, 

Ko  duna  a  mors  vortu, 

Par  unc  la  mort  provee  fu, 

1  Atant'  se  escrie  li  rois, 

1  Treiez  hors  ceu  cben  puuoia.'  "' 

This  form  of  ordeal  never  obtained  the  extended  influ- 
ence which  ch&raeteriteel  some  of  the  other  modes,  and  it 
teems  to  have  been  chiefly  confined  to  the  populations  allied 
to  the  Saxon  nice.  In  England,  before  the  Conquest,  it  was 
enjoined  on  the  lower  orders  of  the  clergy,3  and  it  may  be 
considered  as  a  plebeian  mode  of  trial,  rarely  rising  into 
historical  importance.  Its  vitality,  however,  is  demon- 
strated by  the  fact  that  Lindenbruck,  writing  in  1G13, 
states  that  it  was  then  still  in  frequent  use.3 

Almoin  relates  a  story  which,  though  in  no  sense  judi- 
cial, presents  us  with  an  instance  of  the  same  superstition. 
A  certain  renowned  knight  named  Arnustus  unjustly  oc- 
cupied a  property  belonging  to  the  Benedictine  Abbey  of 
Fleniy.  Dining  there  one  da}-,  and  boasting  of  his  con- 
tempt for  the  complaints  of  the  holy  monks,  he  took  a  pear 
and  exclaimed — "  I  call  this  pear  to  witness  that  before  the 
year  is  out  I  will  give  them  ample  cause  for  grumbling." 
Choking  with  the  first  morsel,  he  was  carried  speechless  to 
bed,  and  miserably  perished  unhouselled,  a  warning  to 
evil-doers  not  to  tempt  too  far  the  patience  of  St.  Benedict.4 
These  stories  are  by  no  means  uncommon,  and  are  interest- 
ing as  a  picture  of  the  times,  when  they  were  reverently 
received,  and  formed  a  portion  of  the  armory  by  which  the 
weak  defended  themselves  against  the  strong.     Somewhat 

1  Lives  of  Edward  the  Confessor,  p.  119  (Rer.  Britann.  Script.). 
"  Dooms  of  Ethelred,  ix.  §  22;  Cnut.  Eccles.  Tit.  v. 
1  Alium  examinis  modum,  nostro  etiamnunc  esoculo,   ssepe  malo  modo 
usitatum. — Cod.  Legum  Antiq.  p.  1418. 
'  De  Mirac.  S.  Benedicti.  Lib.  I.  c.  v. 


236  THE    ORDEAL. 

similar  is  an  occurrence  related  about  the  year  1090,  when 
Duke  Henry  of  Limburg  was  involved  in  a  quarrel  with 
Engilbert,  Archbishop  of  Treves,  and  treated  the  excom- 
munication and  anathema  inflicted  upon  him  with  contempt. 
Joking  upon  the  subject  with  his  followers  one  day  at  din- 
ner, he  tossed  a  fragment  of  food  to  his  dog,  remarking 
that  if  the  animal  ate  it,  they  need  not  feel  apprehensive  of 
the  episcopal  curse.  The  dog  refused  the  tempting  morsel, 
though  he  manifested  his  hunger  by  eagerly  devouring  food 
given  him  by  another  hand,  and  the  Duke,  by  the  advice  of 
his  counsellors,  lost  no  time  in  reconciling  himself  with  his 
ghostly  adversary.  This  is  the  more  remarkable,  as  Engil- 
bert himself  was  under  excommunication  by  Gregory  YIL, 
being  a  stanch  imperialist,  who  had  received  his  see  from 
Henry  IV.  and  his  pallium  from  the  antipope  Guiberto.1 

In  India,  this  ordeal  is  performed  with  a  kind  of  rice 
called  sathee,  prepared  with  various  incantations.  The 
person  on  trial  eats  it,  with  his  face  to  the  East,  and  then 
spits  upon  a  Peepul  leaf.  "If  the  saliva  is  mixed  with 
blood,  or  the  corners  of  his  mouth  swell,  or  he  trembles, 
he  is  declared  to  be  a  liar."2 

A  simplification  of  the  ordeal  of  consecrated  bread  was 
the  trial  by  the  Eucharist,  which  indeed  may  be  regarded 
as  bearing  a  similar  relation  to  all  the  forms  of  ordeal,  as 
its  administration  was  invariably  a  portion  of  the  prepara- 
tory ceremony,  with  the  awful  adjuration,  "May  this  body 
and  blood  of  our  Lord  Jesus  Christ  be  a  judgment  to 
thee  this  day!"  The  general  use  of  the  sacrament  to  lend 
authority  and  solemnity  to  transactions,  and  the  binding 
force  it  was  thought  to  give  to  treaties,  agreements,  and 
the  testimony  of  witnesses,  might  seem  to  remove  it  in  its 
simplicity  from  among  the  list  of  ordeals  proper,  were  it 

1  Gesta  Tr  ever  or  urn,  continuat.  i.     (Patrol.  154,  1205-6.) 

2  Ayeen  Akbery,  II.  498. 


T  I!  |     |  IT  II   \  |  1ST.  231 

not  for  tli**  superstition  of  the  age  irhiefa  believed  that, 
when  ihr  consecrated  wafer  was  offered  under  appropriate 

invocations,  the  guilty  could  not  receive  it.  or  that,  If  it 
were  taken,  immediate  convulsions  and  speedy  death,  or 
some  other  miraculous  manifestation,  ensued  This  is  well 
illustrated  by  a  form  of  exorcism  preserved  by  Mansi: 
M  We  humbly  pray  thy  Infinite  Majesty  that  this  priest,  if 
guilty  of  the  accusation,  shall  not  be  able  to  receive  this 
Venerated  body  of  thy  Son,  crucified  for  the  salvation  of 
all,  and  that  what  should  be  the  remedy  of  all  evil  shall 
prove  to  him  hurtful,  full  of  grief  and  suffering,  bearing 
with  it  all  sorrow  and  bitterness."1  What  might  be  ex- 
pected under  such  circumstances  is  elucidated  by  a  case 
which  occurred  in  the  early  part  of  the  eleventh  century,  as 
reported  by  Rodolphus  Glaber,  a  contemporary,  in  which  a 
monk,  condemned  to  undergo  the  trial,  boldly  received  the 
sacrament,  when  the  Host,  indignant  at  its  lodgment  in 
the  body  of  so  perjured  a  criminal,  immediately  slipped 
out  at  the  navel,  white  and  pure  as  before,  to  the  immense 
consternation  of  the  accused,  who  forthwith  confessed  his 
crime.8 

The  antiquity  of  this  mode  of  trial  is  shown  in  its  em- 
ployment by  Cautinus,  Bishop  of  Auvergne,  towards  the 
close  of  the  sixth  century.  A  certain  Count  Eulalius  was 
popularly  accused  of  parricide,  whereupon  he  was  suspended 
from  communion.  On  his  complaining  of  thus  being  pun- 
ished without  a  trial,  the  bishop  administered  the  sacra- 
ment under  the  customary  adjuration,  and  Eulalius,  taking 

1  Baluz.  et  Mansi  Miscell.  II.  575. 

9  Lib.  v.  cap.  i.  Somewhat  similar  is  the  story  of  a  volunteer  miracle 
vouchsafed  to  an  unchaste  priest  at  Lindisfarne,  who  being  suddenly  sum- 
moned to  celebrate  mass  without  having  had  time  to  purify  himself,  when  he 
came  to  partake  of  the  sacramental  cup.  saw  the  wine  change  to  an  exceeding 
blackness.  After  some  hesitation  he  took  it,  and  found  it  bitter  to  the  last 
degree.  Hurrying  to  his  bishop,  he  confessed  his  sin,  underwent  penance, 
and  reformed  his  life.     (Roger  of  Wendover,  ann.  1051.) 


238  THE     ORDEAL. 

it  without  harm,  was  relieved  from  the  imputation.1  It 
was  usually,  however,  a  sacerdotal  form  of  purgation,  as  is 
shown  by  the  Anglo-Saxon  laws,3  and  by  the  canons  of  the 
Councils  of  Tribur  and  Worms  directing  its  employment, 
in  all  cases  of  ecclesiastics  charged  with  crimes,  to  relieve 
them  from  the  necessity  of  taking  oaths.3  Thus,  in  941, 
Frederic,  Archbishop  of  Mainz,  publicly  submitted  to  an 
ordeal  of  this  kind,  to  clear  himself  of  the  suspicion  of 
having  taken  part  in  an  unsuccessful  rebellion  of  Henry, 
Duke  of  Bavaria,  against  his  brother,  Otho  the  Great.4 
After  the  death  of  Henry,  slander  assailed  the  fame  of  his 
widow,  Juthita,  on  account  of  an  alleged  intimacy  between 
her  and  Abraham,  Bishop  of  Frisingen.  When  she,  too, 
died,  the  bishop  performed  her  funeral  rites,  and,  pausing 
in  the  mass,  he  addressed  the  congregation :  "  If  she  was 
guilty  of  that  whereof  she  was  accused,  may  the  Omnipo- 
tent Father  cause  the  body  and  blood  of  the  Son  to  be  my 
condemnation  to  just  perdition,  and  perpetual  salvation  to 
her  soul!" — after  which  he  took  the  sacrament  unharmed, 
and  the  people  acknowledged  the  falsity  of  their  belief.5 
So  in  1050,  Subico,  Bishop  of  Speyer,  cleared  himself  of  a 
similar  accusation  at  the  Council  of  Mainz,  in  the  same 
manner.6 

Perhaps  the  most  striking  instance  recorded  of  its  admi- 
nistration was,  however,  in  a  secular  matter,  when  in  869 
it  closed  the  unhappy  controversy  between  King  Lothair 

1  Greg.  Turon.  Hist.  Lib.  x.  cap.  8. 

3  Dooms  of  Ethelred,  x.  §  20  ;  Cnut.  Eccles.  Tit.  v. 

3  Can.  Statuit  quoque.  Caus  II.  qusest.  v. — Concil.  Vormat.  ann.  868, 
can.  15. 

*  Reginonis  Continuat.  Ann.  941. 

8  Dithmari  Chron.  Lib.  n. 

6  Hist.  Archiep.  Bremens.  ann.  1051.  (Lindenbrog.  Script.  Septentrion. 
p.  90.)  Lambert.  Schafnab.  ann.  1050.  Another  account  of  the  transaction, 
however,  states  that  the  bishop's  jaw  became  paralyzed  in  the  act,  "  terrifico 
sacramento  Dominici  corporis,"  and  remained  in  that  condition  until  his 
death  (Hartzheim  Concil.  German.  III.  112). 


I  ii  i;    11  c  ii  a  u  ist.  ?S? 

and  hi*  wives,  to  which  reference  has  been  already  made. 

T<>  reconcile  himself  t<>  the  (Munch,  Lothair  took  a  solemn 
oath  before  Adrian  1 1,  tliat  be  had  obeyed  the  eocleeiaatica] 
mandates  in  maintaining  ■  complete  separation  from  his 
psendo-wife  Waldrada,  after  whieh  the  pontiff  admitted  him 

to  communion,  under  an  adjuration  t hat  it  should  prove 
the  test  of  his  truthfulness.  Lothair  did  not  shrink  from 
the  ordeal,  nor  did  his  nobles,  to  whom  it  was  given  on 
their  declaring  that  they  had  not  abetted  the  designs  of 
the  concubine;  but,  leaving  Rome  immediately  afterwards, 
the  royal  cortfye  was  stopped  at  Piacenza  by  a  sudden  epi- 
deniie  which  broke  out  among  the  courtiers,  and  there 
Lothair  died.  August  8th,  with  nearly  all  of  his  followers — 
an  awful  example  held  out  by  the  worthy  chroniclers  as  a 
warning  to  future  generations,  M  for  he  who  eats  and  drinks 
it  unworthily  eats  and  drinks  his  own  condemnation."1 

In  this  degradation  of  the  Host  to  the  level  of  daily  life, 
there  was  a  profanity  which  could  hardly  fail  to  disgust  a 
reverential  mind,  and  we  are  therefore  not  surprised  to  find 
King  Robert  the  Pious,  in  the  early  part  of  the  eleventh 
century,  raising  his  voice  against  its  judicial  use,  and 
threatening  to  degrade  the  Archbishop  of  Sens  for  employ- 
ing it  in  this  manner,  especially  as  his  biographer  informs 
us  that  the  custom  was  daily  growing  in  favor.a  Robert's 
example  was  soon  afterwards  imitated  by  Alexander  II. 
who  occupied  the  pontifical  chair  from  1061  to  1073.3  The 
next  pope,  however,  the  impetuous  Hildebrand,  made  use 
of  it  on  a  memorable  occasion,  and  in  a  manner  productive 
of  lasting  results.  When,  in  1077,  the  unhappy  Emperor 
Henry  IV.  had  endured  the  depths  of  humiliation  before 

1  Regino,  ann.  869;  Annal.  Bertiniani.  "But  let  a  man  examine  him- 
self, and  so  let  him  eat  of  that  bread  and  drink  of  that  cup,  for  he  that  eateth 
and  drinketh  unworthily,  eateth  and  drinkoth  damnation  to  himself,  not  dis- 
cerning the  Lord's  body."— 1  Corinth,  xi.  2S,  29. 

-  Helgaldi  Epitome  Vila  Roberti  Regis. 

3  Duclos,  Mcmoire  sur  les  Kpreuves. 


240  THE    ORDEAL. 

the  arrogant  pontiff's  castle  gate  at  Canosa,  and  had  at 
length  purchased  peace  by  submitting  to  all  the  exactions 
demanded  of  him,  the  excommunication  under  which  he 
had  lain  was  removed  in  the  chapel.  Then  Gregory,  refer- 
ring to  the  crimes  imputed  to  himself  by  the  emperor's 
partisans,  said  that  he  could  easily  refute  them  by  abundant 
witnesses  ;  "  but  lest  I  should  seem  to  rely  rather  on  human 
than  divine  testimony,  and  that  I  may  remove  from  the 
minds  of  all,  by  immediate  satisfaction,  every  scruple, 
behold  this  bod}^  of  our  Lord  which  I  am  about  to  take. 
Let  it  be  to  me  this  clay  a  test  of  my  innocence,  and 
may  the  Omnipotent  God  this  day  by  his  judgment 
absolve  me  of  the  accusations  if  I  am  innocent,  or  let 
me  perish  by  sudden  death,  if  guilty!"  Swallowing  the 
wafer,  he  turned  to  the  emperor,  and  demanded  of  him 
the  same  refutation  of  the  charges  urged  against  him  by  the 
German  princes.  Appalled  by  this  unexpected  trial,  Henry 
in  an  agony  of  fear  evaded  it,  and,  trembling,  consulted 
hurriedly  with  his  councillors  how  to  escape  the  awful  test. 
Finally  he  declined  on  the  ground  of  the  absence  of  both 
his  friends  and  his  enemies,  without  whose  presence  the 
result  would  establish  nothing;  and  thus,  to  avoid  the 
present  danger  of  his  imagination,  he  promised  to  submit 
to  a  trial  by  the  Imperial  Diet.  By  this  he  lost  the  results 
so  dearly  bought  by  his  sacrifices  and  humiliations,  and 
perpetuated  the  civil  strife,  to  put  an  end  to  which  he  had 
labored  and  endured  so  much.1 

1  Lambert.  Schaffnab.  arm.  1077.  In  estimating  tbe  mingled  power  of 
imagination  and  conscience  wbich  rendered  the  proposal  insupportable  to  the 
emperor,  we  must  allow  for  the  influence  which  a  man  like  Hildebrand  with 
voice  and  eye  can  exert  over  those  whom  he  wishes  to  impress.  At  an  ear- 
lier stage  of  his  career,  in  1055,  he  improvised  a  very  effective  species  of 
ordeal,  when  presiding  as  papal  legate  at  the  Council  of  Lyons,  assembled 
for  the  repression  of  simony.  A  guilty  bishop  had  bribed  the  opposing  wit- 
nesses, and  no  testimony  was  obtainable  for  his  conviction.  Hildebrand 
addressed  him  :  "  The  episcopal  grace  is  a  gift  of  the  Holy  Ghost.  If,  there- 
fore, you  are  innocent,  repeat,  '  Glory  to  the  Father,  and  to  the  Son,  and  to 
the  Holy  Ghost !'  "    The  bishop  boldly  commenced,   "  Glory  to  the  Father, 


T  II  |     |  o  <•  II  A  B  1ST.  241 

Even  thus,  however,  he  was  more  fortunate  than  Embrico, 
Bishop  of  A.ngsbnrg,  who.  in  the  same  year,  after  Bwearing 
fealty  to  Rodolph  of  Suabia,  abandoned  him  and  Joined  the 

emperor.  Soon  after,  while  saving  mass  before  Henry,  to 
prove  the  force  of  his  Loyal  convictions,  he  declared  that 

the  sacrament  he  was  about  to  take  should  attest  the  right- 
eousness of  his  master's  cause;  and  the  anti-imperialist, 
chronicler  duly  records  that  sudden  disease  overtook  him, 
to  be  followed  by  speedy  death.1  In  the  case  of  William, 
Bishop  of  Utrecht,  as  related  by  Hugh  of  Flavigny,  the 
Eucharist  was  less  an  ordeal  than  a  punishment.  He  dared, 
at  the  Assembly  of  Utrecht,  in  1076,  to  excommunicate 
Gregory,  at  the  command  of  Henry  IV.;  but  when,  at  the 
conclusion  of  the  impious  ceremony,  he  audaciously  took 
the  I  Tost,  it  turned  to  fire  within  him,  and,  shrieking  "I 
burn!  I  burn!"  he  fell  down  and  miserably  died.3 

and  to  the  Son,  and  to — "  here  his  voice  failed  him,  he  was  unable  to  finish 
the  sentence  ;  and,  confessing  the  sin,  he  was  deposed.  This  anecdote  rests 
on  good  authority.  Peter  Damiani  states  that  he  had  it  from  Hildebrand 
himself  (Opusc.  xix.  cap.  vi.),  and  Calixus  II.  was  in  the  habit  of  relating 
it  (Pauli  Bernried.  Vit.  Greg.  VII.  No.  11). 

1  Cernald.  Constant.  Chron.  ann.  1077. 

"  Ilngon.  Flaviniac.  Chron.  Lib.  n.  ann.  1079. — Among  the  manifestations 
of  belief  in  the  miraculous  powers  of  the  Host  may  be  mentioned  the  prac- 
tice of  throwing  on  a  conflagration  the  cloth  used  to  cover  the  sacred  cup, 
in  the  expectation  that  it  would  extinguish  the  flames.  This  superstition 
was  sufficiently  important  to  attract  the  reprehension  and  prohibition  of  the 
Council  of  Selingenstadt  in  1022.  "  Conquestum  est  .  .  .  de  quibusdam 
stultissimis  presbyteris  ut  quando  incendium  videant,  corporale  dominico 
corpore  consecratum,  ad  extinguendum  incendium  temeraria  prssumptione 
in  ignem  projiciant.  Ideoque  decretum  est  sub  anathematis  interdictione, 
ne  ulterius  fiat." — (Concil.  Selingens.  cap.  vi.)  A  less  harmless  belief  in  the 
virtues  of  the  body  of  our  Lord  was  shown  during  the  terrible  persecution 
which  repressed  the  religious  movement  of  Germany  in  the  second  quarter  of 
the  thirteenth  century.  It  is  gravely  related  that  among  the  thousands  of 
unfortunate  heretics  who  expiated  their  perverseness  at  the  stake,  one  poor 
wretch  would  not  burn,  and  obstinately  resisted  the  efforts  of  his  torturers, 
until  some  one  brought  to  the  pile  a  holy  wafer,  when  the  unbeliever  was 
promptly  reduced  to  a  cinder.  (Alberic.  Trium  Fontium  Chron.  ann.  1233.) 
21 


242  THE    ORDEAL. 

The  ordeal  of  the  lot  left  the  decision  to  pure  chance, 
in  the  hope  that  Heaven  would  interpose  to  save  the 
innocent  and  punish  the  guilty.  We  may  assume  that 
this  was  extensively  practised  in  Pagan  times,  but 
that,  on  the  introduction  of  Christianity,  it  gradually 
became  obsolete,  as  the  various  modes  of  appealing  to  the 
Deity,  which  are  described  above,  acquired  importance 
and  threw  the  less  impressive  reference  to  the  lot  into 
insignificance.  The  only  allusions  to  it  occur  in  the  ear- 
lier laws,  and  no  trace  of  it  is  to  be  met  with  in  the 
subsequent  legislation  of  any  race.  Mention  of  it  is  made 
in  the  Ripuarian  code,1  and  in  some  of  the  earlier  Merovin- 
gian documents  its  use  is  prescribed  in  the  same  brief 
manner.3  Indeed,  as  late  as  the  middle  of  the  eighth 
century,  Ecgberht,  Archbishop  of  York,  quotes  from  the 
canons  of  the  Council  of  Ireland  (probably  that  of  A.  I).  456) 
a  direction  for  its  employment  in  cases  of  sacrilegious  theft, 
as  a  means  of  determining  the  punishment  to  be  inflicted.3 
On  the  other  hand,  shortly  after,  the  Council  of  Calchuth, 
in  England,  condemned  the  practice  between  litigants  as  a 
remnant  of  paganism.4 

No  explanation  is  given  of  the  details  of  the  process  by 
which  this  ajopeal  to  fortune  was  made,  and  I  know  of  no 
contemporary  applications  by  which  its  formula  can  be  inves- 

1  Ad  ignem  seu  ad  sortem  se  excusare  studeat. — Tit.  xxxi.  §  5. 

9  Pact.  Childeberti  et  Chlotarii,  ann.  593,  §  5.  "  Et  si  dubietas  est,  ad 
sortem  ponatur."  Also  §  8  :  "Si  litus  de  quo  inculpatur  ad  sortem  ambu- 
laverit."  As  in  §  4  of  the  same  document  the  aneum  or  hot-water  ordeal  is 
provided  for  freemen,  it  is  possible  that  the  lot  was  reserved  for  slaves. 
This,  however,  is  not  observed  in  the  Decret.  Chlotarii,  ann.  595,  §  6,  where 
the  expression,  M  Si  de  suspicione  inculpatur,  ad  sortem  veniat,"  is  general 
in  its  application,  without  reservation  as  to  station. 

3  Si  quis  furatus  fuerit  pecuniam  ab  a^cclesia,  mittatur  sors,  ut  aut  illius 
manus  abscindatur,  aut  in  carcerem  mittatur,  diu  jejunans  ac  gemens. — 
Ecgberti  Excerpt,  cap.  lxxxiv.  (Thorpe,  II.  108). 

4  Audivimus  etiam  quod  dum  inter  vos  litigium  versatur,  sortes  more  gen- 
tilium  mittatis,  quod  omnino  sacrilegium  istis  teraporibus  reputatur  — Cone. 
Calchuth.  can.  19  (Spelman,  Concil.  Brit.  I.  300). 


T  I!  |     l,OT.  243 

tigated ;  but  in  the  primitive  Frisian  laws  there  Is  described 
a  singular  ordeal  of  chance,  which  may  reasonably  be  as- 
sumed to  bear  sonic  relation  to  it.  When  a  man  was  killed 
in  a  ohanoe-medley  and  the  murderer  remained  unknown, 
the  friends  had  a  right  to  accuse  seven  of  the  participants 
in  the  brawl.  Bach  of  these  defendants  had  then  to  take 
the  oath  of  denial  with  twelve  conj orators,  after  which  they 
Were  admitted  to  the  ordeal.  Two  pieces  of  twig,  precisely 
similar,  were  taken,  one  of  which  was  marked  with  a  cross; 
they  were  then  wrapped  up  separately  in  white  wool  and 
laid  on  the  altar ;  prayers  were  recited,  invoking  God  to 
reveal  the  innocence  or  guilt  of  the  party,  and  the  priest, 
or  a  sinless  youth,  took  up  one  of  the  bundles.  If  it  con- 
tained the  marked  fragment,  the  defendants  were  absolved  ; 
if  the  unmarked  one,  the  guilty  man  was  among  them. 
Each  one  then  took  a  similar  piece  of  stick  and  made  a 
private  mark  upon  it ;  these  were  rolled  up  as  before, 
placed  on  the  altar,  taken  up  one  by  one,  and  unwrapped, 
each  man  claiming  his  own.  The  one  whose  piece  was  left 
to  the  last  was  pronounced  guilty,  and  was  obliged  to  pay 
the  wehr-gild  of  the  murder.1  The  various  modes  of  eccle- 
siastical divination,  so  frequently  used  in  the  Middle  Ages 
to  obtain  an  insight  into  the  future,  sometimes  assumed 
the  shape  of  an  appeal  to  Heaven  to  decide  questions  of 
the  present  or  of  the  past.2  Thus  when  three  bishops, 
of  Poitiers,  Arras,   and  Autun,   each  claimed  the  holy 

1  L.  Frision.  Tit.  xiv.  §§  1,  2.  This  may  not  improbably  be  derived  from 
the  mode  of  divination  practised  among  the  ancient  Germans,  as  described 
by  Tacitus,  De  Moribus  German,  cap.  x. 

3  When  used  for  purposes  of  divining  into  the  future,  these  practices  were 
forbidden.  Thus  as  early  as  465  the  Council  of  Vannes  denounced  those 
who  "sub  nomine  fictaj  religionis  quas  sanctorum  sortes  vocant  divinationis 
scientiam  profitentur,  aut  quarumcumque  scripturarum  inspectione  futura 
promittant,"  and  all  ecclesiastics  privy  to  such  proceedings  were  to  be  ex- 
pelled from  the  church.  (Concil.  Venet.  can.  xvi.)  This  canon  is  repeated 
in  the  Council  of  Agde  in  506,  where  the  practice  is  denounced  as  one  "quod 
'maxima  fidem  catholicse  religionis  infestat."    (Cone.  Agathens.  can.  xlii.) 


244  THE     ORDEAL. 

relics  of  St.  Liguaire,  and  human  means  were  unavailing 
to  reconcile  their  pretensions,  the  decision  of  the  Supreme 
Power  was  resorted  to,  by  placing  under  the  altar-cloth 
three  slips  with  their  respective  names  inscribed,  and  after 
a  becoming  amount  of  prayer,  on  withdrawing  one  of  them, 
the  See  of  Poitiers  was  enriched  with  the  precious  remains 
by  Divine  favor.1 

Somewhat  similar  in  character  was  an  appeal  to  heaven 
made  by  the  pious  monks  of  Abingdon,  about  the  middle 
of  the  tenth  century,  to  determine  their  right  to  the  mea- 
dows of  Beri  against  the  claims  of  some  inhabitants  of 
Oxfordshire.  For  three  days,  with  fasting  and  prayer,  they 
implored  the  Divine  omnipotence  to  make  manifest  their 
right;  and  then,  by  mutual  assent,  they  floated  on  the 
Thames  a  round  buckler,  bearing  a  handful  of  wheat,  in 
which  was  stuck  a  lighted  taper.  The  sturdy  Oxonians 
gaped  at  the  spectacle  from  the  distant  bank,  while  a 
deputation  of  the  more  prudent  monks  followed  close  upon 
the  floating  beacon.  Down  the  river  it  sailed,  veering 
from  bank  to  bank,  and  pointing  out,  as  with  a  finger,  the 
various  possessions  of  the  Abbey,  till  at  last,  on  reaching 
the  disputed  lands,  it  miraculously  left  the  current  of  the 
stream,  and  forced  itself  into  a  narrow  and  shallow  channel, 
which  in  high  water  made  an  arm  of  the  river  around  the 
meadows  in  question.     At  this  unanswerable  decision,  the 

1  Baldric.  Lib.  I.  Chron.  Camerac.  cap.  21.  (Du  Cange,  s.  v.  Sors.) — In 
this  the  bishops  were  guilty  of  no  contravention  of  ecclesiastical  rules.  That 
such  trials  were  allowed  by  the  canon  law,  when  properly  conducted  for  ap- 
propriate purposes,  is  shown  by  Gratian.  Decret.  Caus.  26,  q.  2,  can.  3,  4. 
The  most  extraordinary  application,  however,  is  that  by  which,  under  the 
Spanish  Wisigoths,  episcopal  elections  were  sometimes  decided.  The  second 
Council  of  Barcelona,  in  599,  directs  that  two  or  three  candidates  shall  be 
chosen  by  the  clergy  and  people,  and  from  among  these  the  metropolitan 
and  suffragan  bishops  shall  select  by  lot,  "  quern  sors,  pracunte  episcoporum 
jejunio,  Christo  domino  terminante,  monstraverit,  benedietio  consecrationis 
accumulet." — (Concil.  Barcinon.  II.  can.  4.)  This  is  evidently  suggested 
by  the  election  of  Matthias  (Acts,  I.  26). 


ORDEAL    OF    BLOOD.  245 

people  with  one  accord  shouted  MJui  A.bbendonifie,  jus 
Abbendonise !"  and  so  powerful  traa  the  impression  pro- 
duced, that  the  worthy  chronicler  assures  us  that  thence- 
forth neither  king,  nor  duke,  nor  prince  dared  to  lay  claim 

to  the  lands  of  Beri;  showing  conclusively  the  wisdom  of 
the  abbot  who  preferred  thus  to  rely  upon  his  right  rather 
than  on  mouldy  charters  or  dilatory  pleadings.1 

As  administered  in  India,  the  ordeal  of  chance  consists 
in  writing  the  words  dherem  and  adherem  on  plates  of 
silver  and  lead  respectively,  or  on  pieces  of  white  and  black 
linen,  which  are  placed  in  a  vessel  that  has  never  held 
water.  The  party  on  trial  draws  out  one  of  the  pieces, 
and  if  it  proves  to  be  "dherem"  he  gains  his  cause.9 

The  superstition  that,  at  the  approach  of  a  murderer, 
the  body  of  his  victim  would  bleed,  or  give  some  other 
manifestation  of  recognition,  is  one  of  ancient  origin,  and 
in  some  countries  it  has  been  made  a  means  of  investiga- 
tion and  detection.  Shakspeare  introduces  it  in  King 
Richard  III.,  where  Gloster  interrupts  the  funeral  of  Henry 
VI.,  and  Lady  Anne  exclaims : 

"0  gentlemen,  see,  see!  dead  Henry's  wounds 
Open  their  congealed  mouths,  and  bleed  afresh." 

The  story  is  well  known  which  relates  that,  when  Richard 
Cceur-de-Lion  hastened  to  the  funeral  of  his  father,  Henry 
II.,  and  met  the  procession  at  Fontevraud,  the  blood  poured 
from  the  nostrils  of  the  dead  king,  whose  end  he  had  has- 
tened by  his  disobedience  and  rebellion.3  The  belief  in 
this,  as  also  in  the  ordeal  of  fire,  is  well  illustrated  in  the 
ballad  of  "  Earl  Richard,"  given  by  Scott  in  the  "Min- 
strelsy of  the  Scottish  Border." 

1  Hist.  Monast.  de  Abingdon  Lib.  I.  (Rer.  Brit.  Med.  iEvi  Script.  Vol.  I. 
p.  89). 

a  Ayeen  Akbery,  II.  498.  This  ordeal  is  allowed  for  all  the  four  castes, 
Brahmins,  Kchatryas,  Vaisyas,  and  Sofldras. 

3  Roger  de  Hoveden,  ann.  1189;  Roger  of  Wendover. 

21* 


24G  THE    ORDEAL. 

"  '  Put  na  the  wite  on  me,'  she  said  ; 
'It  was  my  may  Catherine.' 
Then  they  hae  cut  haith  fern  and  thorn, 
To  hum  that  maiden  in. 

"  It  wadna  take  upon  her  cheik, 
Nor  yet  upon  her  chin  ; 
Nor  yet  upon  her  yellow  hair, 
To  cleanse  that  deadly  sin. 

"  The  maiden  touched  that  clay-cauld  corpse, 
A  drap  it  never  hied  ; 
The  ladye  laid  her  hand  on  him, 
And  soon  the  ground  was  red." 

King  James  I.  patronized  this  among  the  other  super- 
stitions to  which  he  gave  the  authority  of  his  regal  appro- 
bation j1  and  in  the  notes  to  the  above  ballad,  Scott  quotes 
some  curious  instances  of  the  judicial  use  of  the  belief, 
even  as  late  as  the  seventeenth  century.  In  1611,  suspicion 
arising  as  to  the  mode  by  which  a  person  had  met  his 
death,  the  body  was  exhumed,  and  the  neighborhood  sum- 
moned to  touch  it,  according  to  custom.  The  murderer, 
whose  rank  and  position  placed  him  above  suspicion, 
kept  away ;  but  his  little  daughter,  attracted  by  curiosity, 
happened  to  approach  the  corpse,  when  it  commenced 
bleeding,  and  the  crime  was  proved.  In  another  case, 
which  occurred  in  1687,  the  indictment  sets  forth  that  blood 
rushed  from  the  mouth  and  nostrils  of  the  deceased,  who 
had  been  found  drowned,  on  being  accidentally  touched 
by  his  son ;  and  the  latter  was  convicted  and  executed, 
although  there  was  little  other  evidence  against  him  except 
a  generally  bad  character.  The  extent  to  which  the  super- 
stition was  carried  is  shown  by  a  story  of  a  young  man, 
who  quarrelled  with  a  companion,  stabbed  him,  and  threw 
the  body  into  a  river.  Fifty  years  passed  away,  when  a 
bone  chancing  to  be  fished  up,  the  murderer,  then  an  old 

1  Nam  ut  in  homieidio  occulto  sanguis  e  cadavere.  tangente  homicida, 
eruinpit,  quasi  cubitus  poscens  ultionem. — Demonologiae  Lib.  III.  c.  vi. 


ORDEAL    OP    BLOOD.  2  1 7 

man,  happened  t<>  touch  It, and  it  streamed  with  blood. 
Enquiring  where  it  had  been  found,  he  recognized  the  relic 
of  his  crime,  confessed  it,  and  was  duly  condemned.  We 
may  trace  a  more  poetic  form  of  this  superstition  in  the 
touching  legend  of  the  welcome  which  the  bones  of  Abe- 
lard  gave  to  Heloise,  when,  twenty  years  after  his  death, 
she  was  consigned  to  the  same  tomb. 

Although  there  is  no  allusion  to  this  custom  in  any  of 
the  primitive  Leges  Barbarorum,  nor  even  in  the  German 
municipal  code  of  the  thirteenth  century,  yet  it  was  judi- 
cially employed  there  until  the  sixteenth  century,  under 
the  name  of  "  Bahr-recht."  Thus  in  1324,  Reinward,  a 
Canon  of  Minden,  was  murdered  by  a  drunken  soldier, 
and  the  crime  was  brought  home  to  the  perpetrator  by  a 
trial  of  this  kind;1  and  about  the  year  1600,  Bishop  Bins- 
feld  speaks  of  its  occurrence  as  an  indubitable  fact.2  In 
1592,  however,  the  learned  jurisconsult  Zanger,  after  citing 
numerous  authorities  on  both  sides,  concludes  that  it  is 
not  evidence  sufficient  even  to  justify  the  application  of 
torture.3  A  variation  of  it,  known  as  "Scheingehen,"  was 
practised  in  the  Netherlands  and  the  North,  in  which  the 
hand  of  the  corpse  was  cut  off,  and  touched  by  all  sus- 
pected persons,  with  protestations  of  innocence,  and  when 
the  guilty  one  came,  it  was  expected  to  bleed.4 

The  vitalh^  of  superstition  is  well  illustrated  by  the 
hold  which  this  belief  still  maintains  over  the  credulous 
minds  of  the  uneducated.  Even  in  1860,  the  Philadelphia 
journals  mention  a  case  in  which  the  relatives  of  a  de- 
ceased person,  suspecting  foul  play,  vainly  importuned  the 
coroner,  some  weeks  after  the  interment,  to  have  the  body 

1  Swartii  Chron.  Ottbergens.  §  xlvii.  (Paullini  Antiq.  German.  Syn- 
tagma). 

2  Tract,  de  Confess.  Maleficar.  Dub.  iv.  Conclus.  8,  Prelud.  12  (ap. 
Rickii  §  63). 

3  Zangeri  Tract,  de  Qufcstionibu?,  cap.  If.  No.  1G0. 

4  Konigswarter,  op.  cit.  p.  183. 


248  THE     ORDEAL. 

exhumed,  in  order  that  it  might  be  touched  by  a  person 
whom  they  regarded  as  concerned  in  his  death.1 

We  may  even  include  among  ordeals  the  ordinary  pur- 
gatorial oath,  when  administered  upon  relics  of  peculiar 
sanctity,  to  which  the  superstition  of  the  age  attributed 
the  power  of  punishing  the  perjurer.  Thus  the  monks  of 
Abingdon  boasted  a  black  cross  made  from  the  nails  of  the 
crucifixion,  and  said  to  have  been  given  them  by  the  Em- 
peror Constantine,  a  false  oath  on  which  was  sure  to  cost 
the  malefactor  his  life  ;  and  the  worthy  chronicler  assures 
us  that  the  instances  in  which  its  miraculous  power  had 
been  triumphantly  exhibited  were  too  innumerable  to  spe- 
cify.8 In  the  Middle  Ages,  these  dangerous  relics  were 
common,  and  however  we  may  smile  at  the  simplicity  of 
the  faith  reposed  in  them,  we  may  rest  assured  that  on 
many  occasions  they  were  the  means  of  eliciting  confessions, 
which  could  have  been  obtained  by  no  devices  of  legal  sub- 
tlety according  to  modern  procedures. 

Though  not  legally  an  ordeal,  I  may  refer  to  a  practice 
cognate  in  its  origin  as  an  appeal  to  Heaven  to  regulate  the 
amount  of  punishment  requisite  for  the  expiation  of  a  crime. 
One  or  more  bands  of  iron  were  not  infrequently  fastened 
round  the  neck  or  arm  of  a  murderer,  who  was  banished 
until  by  pilgrimage  and  prayer  his  reconciliation  and  par- 
don should  be  manifested  by  the  miraculous  loosening  of 
the  fetter,  showing  that  soul  and  body  were  each  released 
from  their  bonds.3    A  case  is  related  of  a  Pole  thus  wander- 


1  Phila.  Bulletin,  April  19,  1860. 

2  Sancta  enim  adeo  est,  ut  nullus,  juramento  super  earn  praestito,  impune 
et  sine  periculo  vitoe  suse  possit  affirniare  mendacium. — Hist.  Monast.  Abing. 
Lib.  i.  c.  xii.      (Rer.  Brit.  Script.) 

3  Fratricidas  autem  et  parricidas  sive  sacerdotum  interfeetores  ....  per 
manura  et  ventrem  ferratos  de  regno  ejiciat  ut  instar  Cain  jugi  et  profugi 
circueant  terram. — Leg.  Bracilai  Boeemor.    (Annal.  Saxo,  ann.  1039).     So 


1  B  B  EG  1    I.  A  H     ORDEALS.  249 

mgwitfa  a  circlet  tightly  clasped  to  each  arm.  One  fell 
before  the  intercession  of  St.  Adalbert,  the  apoatle  of 
Prussia,  hut  the  other  retained  Its  hold  until  the  Binner 
came  to  the  shrine  of  St.  Hidulf  near  TouL  There,  joining 
in  the  worship  of  the  holy  monks,  the  remaining  hand  flew 
off  with  such  force  that  it  bounded  against  the  opposite 
Wall,  while  the  pardoned  criminal  fell  fainting  to  the 
ground,  the  blood  pouring  from  his  liberated  arm:  a 
miracle  gratefully  recorded  by  the  spiritual  children  of  the 
saint.1  Equally  melodramatic  in  its  details  is  a  similar 
instance  of  an  inhabitant  of  Prunay  near  Orleans,  laden 
with  three  iron  bands  for  fratricide.  His  weary  pilgrimage 
was  lightened  of  two  by  the  intercession  of  St.  Peter  at 
Rome,  and  the  third  released  itself  in  the  most  demonstra- 
t  i  ve  manner,  through  the  merits  of  St.  Bertin  and  St.  Omer.- 
If  the  legend  of  St.  Emeric  of  Hungary  be  true,  the  Pope 
himself  did  not  disdain  to  prescribe  this  ordeal  to  the 
criminal  whose  miraculous  release  caused  the  immediate 
canonization  of  the  saint  by  a  synod  in  1073.'* 

The  spirit  of  the  age  is  likewise  manifested  in  an  appeal 
to  Heaven  which  terminated  a  quarrel  in  the  early  part  of 
the  twelfth  century  between  St.  Gerald,  Archbishop  of 
Bracara,  and  a  magnate  of  his  diocese,  concerning  the 
patronage  of  a  church.  Neither  being  inclined  to  yield,  at 
length  the  noble  prayed  that  God  would  decide  the  cause 
by  not  permitting  the  one  who  was  in  the  wrong  to  live 
beyond  the  year,  to  which  St.  Gerald  assented ;  and  in  six 

also  a  century  earlier  for  the  murder  of  a  chief. — Concil.  Spalatens.  arm. 
927,  can.  7  (Batthyani,  I.  331). 

1  De  Successoribus  S.  Hidulfi  cap.  xviii.  (Patrolog.  138,  p.  218).  A 
similar  case  attested  the  sanctity  of  St.  Mansuetus  (Vit.  S.  Mansueti  Lib. 
ii.  c.  17— Martene  et  Durand.  III.  1025). 

3  Folcardi  Mirac.  S.  Bertin.  Lib.  i.  c.  4. 

1  Batthyani,  Legg.  Eccles.  Hung.  T.  I.  p.  413.  Cf.  also  Mirac.  S.  Swithuni, 
c.  ii.  $  32.— Mirac.  S.  Yvonis  c.  21  (Patrol.  155,  pp.  76,  91).  Various  other 
instances  may  be  found  in  Muratori,  Antiq.  Med  iEvi  Diss.  23.  Charle- 
magne seems  to  have  considered  it  a  deception  to  be  restrained  by  law. — 
Car.  Mag.  cap.  i.  ann.  789,  §  Ixxvii. 


250  THE     ORDEAL. 

months  the  death  of  the  unhappy  noble  showed  how  dan- 
gerous it  was  to  undertake  such  experiments  with  a  saint.1 
The  various  poison  ordeals  in  use  among  the  savage 
tribes  of  Africa  and  Madagascar  have  already  been  alluded 
to.  In  India,  the  same  custom  is  preserved  for  the  un- 
fortunate caste  of  the  Soudras.  A  specified  quantity  of 
deadly  poison,  varying  with  the  activity  of  the  article 
administered,  is  mixed  with  thirty  times  its  weight  of  ghee 
or  clarified  butter.  The  patient  takes  it  with  his  face  to 
the  North,  and  if  it  produces  no  effect  upon  him  while  the 
Irvstanders  can  clap  their  hands  five  hundred  times,  he  is 
absolved,  and  antidotes  are  at  once  given  him.3 

Having  thus  described  the  various  forms  in  which  the 
common  principle  of  the  ordeal  developed  itself,  there  are 
some  general  considerations  connected  with  it  which  claim 
brief  attention.  It  was  thoroughly  and  completely  a  judi- 
cial process,  ordained  by  the  law  for  certain  cases,  and 
carried  out  by  the  tribunals  as  a  regular  form  of  ordinary 
procedure.  From  the  earliest  times,  the  accused  who  was 
ordered  to  undergo  the  trial  was  compelled  to  submit  to  it, 
as  to  any  other  decree  of  court.  Thus,  by  the  Salique  law, 
a  recusant  under  such  circumstances  was  summoned  to  the 
royal  court ;  and  if  still  contumacious,  he  was  outlawed, 
and  his  property  confiscated,  as  was  customary  in  all  cases 
of  contempt.3    The  directions  of  the  codes,  as  we  have  seen, 

1  Bernald.  Vit.  S.  Gerald,  cap.  xv.  (Baluz.  et  Mansi  I.  134.) 

3  Ayeen  Akbery,  II.  497. 

3  That  this  was  a  settled  practice  is  shown  by  its  existence  in  the  earliest 
text  of  the  law  (Tit.  lvi.),  as  well  as  in  the  latest  (L.  Emend.  Tit.  lix.). 
It  is  therefore  difficult  to  understand  how  Montesquieu  could  have  overlooked 
it,  when,  in  order  to  establish  his  theory  that  the  original  Frankish  institu- 
tions admitted  no  negative  proofs,  he  asserts  with  regard  to  the  ordeal  that 
"  Cette  preuve  etoit  une  chose  de  convention,  que  la  loi  souffroit,  mais  qu'elle 
n'ordonnoit  pas"  (Esp.  des  Loix,  Lib.  xxviii.  chap.  16) — a  statement  con- 
tradicted by  all  the  monuments,  historical  and  juridical,  of  the  period.  His 
only  proof  is  a  somewhat  curious  custom  of  the  Salien  Franks,  to  which 
reference  is  made  below. 


REGULATIONS    OF    THE    ORDEAL.  251 

are  generally  precise,  and  admit  <>f  do  alternative.1    Ooe* 

sionnlly,  however,  a  privilege  of  selection  was  afforded 
between  this  and  other  modes  of  compurgation,  and  also 
between  the  various  forms  of  ordeal.9 

The    eiivumstaiiees    under   which    its    employment    was 

ordered  varied  considerably  with  the  vary in^  Legislations 
of  races  and  epochs;  and  to  enter  minutely  into  the  ques- 
tion of  the  power  of  the  court  to  decree  it,  or  the  right  to 
demand  it  by  the  appellant  or  the  defendant,  would  require 

too  much  space,  especially  as  it  has  already  been  discussed 
at  some  length  with  regard  to  the  kindred  wager  of  battle. 
Suffice  it  to  say,  that  the  absence  of  satisfactory  testimony, 
rendering  the  case  one  not  to  be  solved  by  human  means 
alone,  is  frequently  alluded  to  as  a  necessary  element  ;3 
and  indeed  we  may  almost  assert  that  this  was  so,  even 
when  not  specifically  mentioned,  as  far  as  regards  the  dis- 
cretion of  the  tribunal  to  order  an  appeal  to  the  judgment 
of  God.  At  the  same  time,  a  law  of  King  Ethelred  seems 
to  indicate  that  the  plaintiff  might  require  his  adversary 
to  submit  to  it,4  and  numerous  examples  among  those 
cited  above  authorize  the  conclusion  that  an  offer  on  the 

1  Si  aufugerit  et  ordalium  vitaverit,  solvat  plegius  compellanti  captale 
suum  ef  regi  weram  suara,  vel  si  qui  wita  sua  dignus  erit. — L.  Cnuti  Saec. 
cap.  xxx. — See  also  cap.  xli. 

■  Et  eligat  accusatus  alterutrum  quod  velit,  sive  simplex  ordalium,  sive 
jusjurandum  unius  libre  in  tribus  hundredis  super  xxx.  den! — L.  Henrici  I 
cap.  lxv.  §  3.  By  the  municipal  codes  of  Germany,  a  choice  between  the 
various  forms  of  ordeal  was  sometimes  allowed  to  the  accused  who  was  sen- 
tenced to  undergo  it. — Jur.  Provin.  Alaman.  cap.  xxxvii.  $§  15,  16;  Jur. 
Provin.  Saxon.  Lib.  i.  Art.  39. 

3  Si  certa  probatio  non  fuerit.— L.  Sal.  Tit.  xiv.,  xvi.  (MS.  Guelferbyt.) 
The  same  is  found  in  the  Pact.  Childeberti  et  Chlotarii  §  5 — Decret.  Chlo- 
tarii  II.  ann.  595,  §  6.— Capit.  Carol.  Calvi,  ann.  870,  cap.  3,  7.— Cnuti 
Constit.  de  Foresta  §  11:  "  Sed  purgatio  ignis  nullatenus  admittatur  nisi 
ubi  nuda  Veritas  nequit  aliter  investigari."  Further  instances  are  hardly 
needed,  as  the  same  limitation  occurs  in  many  of  the  laws  quoted  above. 

*  Et  omnis  accusator  vel  qui  alium  impetit,  habeat  optionem  quid  relit, 
sive  judicium  aque  vel  ferri  .  .  .  et  si  fugiet  (accusatus)  ab  ordalio,  reddat 
eum  plegius  wera  sua."— Ethelr.  Tit.  in.  c.  vi.  (Thorpe  II.  516.) 


252  THE    ORDEAL. 

part  of  the  accused  was  rarely  refused,  even  when  there 
was  strong  evidence  against  him,1  though  this  laxity  of 
practice  was  occasionally  stoutly  objected  to.3  When  the 
custom  was  declining,  indeed,  a  disposition  existed  to 
require  the  assent  of  both  parties  before  the  tribunal  would 
allow  a  case  to  be  thus  decided.3  In  civil  cases,  we  may 
assume  that  absence  of  testimony,  or  the  consent  of  both 
parties,  was  requisite  to  its  emplo3^ment.4  The  comfort 
which  the  system  must  have  afforded  to  indolent  judges 
in  doubtful  cases  is  well  exhibited  by  a  rule  in  various 
ancient  codes,  by  which  a  man  suspected  of  crime,  even 

1  Thus  in  the  Icelandic  code — "  Quodsi  reus  ferrum  candens  se  gerere  velle 
obtulerit,  hoc  miniine  rejiciatur." — Gr&gds,  Sect  vi.  c.  33.  So  in  the  laws 
of  Bruges  in  1190  (§  31),  we  find  the  accused  allowed  to  choose  between  the 
red-hot  iron  and  a  regular  inquest — "  Qui  de  palingis  inpetitur,  si  ad  judicium 
ardentis  ferri  venire  noluerit,  veritatem  comitis  qualem  melius  super  hoc 
inveniri  poterit,  accipiet"  (Warnkb'nig,  Hist,  de  la  Fland.  IV.  372) — show- 
ing that  it  was  considered  the  most  absolute  of  testimony.  And  in  a  consti- 
tution of  Frederic  Barbarossa  "  Si  miles  rusticum  de  violata  pace  pulsaverit 

.  .  .  .  de  duobus  unum  rusticus  eligat,  an  divino  aut  humano  judicio  inno- 
centiam  suam  ostendat." — Feudor.  Lib    II.  Tit.  xxvii.  §  3. 

2  Thus  an  anonymous  ecclesiastic,  in  an  epistle  quoted  by  Juretus  (Ob- 
servat.  in  Ivon.  Carnot.  Epist.  74) — "  Simoniaci  non  admittuntur  ad  judi- 
cium, si  probabiles  personam,  etiam  laicorum,  vel  feminarum,  pretium  se  ab 
eis  recipisse  testantur ;  nee  aliud  est  pro  manifestis  venire  ad  judicium  nisi 
tentare  Dominum." 

3  Duellum  vel  judicium  candentis  ferri,  vel  aquas  ferventis,  vel  alia  canoni- 
bus  vel  legibus  improbata,  nullomodo  in  curia  Montispessulani  rata  sunt,  nisi 
utraque  pars  convenerit. — Statut.  Montispess.  ann.  1204  (Du  Cange). 

4  Si  accolis  de  neutrius  jure  constat,  adeoque  hac  in  re  testimonium  dicere 
non  queant,  turn  judicio  aquae  res  decidatur. — Jur.  Provin.  Alaman.  cap. 
eclxxviii.  §  5. — Poterit  enim  alteruter  eorum  petere  probationem  per  aquam 
(wasser  urteyll)  nee  Dominus  nee  adversarius  detrectare  possit ;  sed  non,  nisi 
quum  per  testes  probatio  fieri  nequit. — Jur.  Feud.  Alaman.  cap.  lxxvii.  §  2. 

''  Aut  Veritas  reperiatur  de  hoc  per  aquaticum  Dei  judicium.  Tamen  judi- 
cium Dei  non  est  licitum  adhiberi  per  ullam  causam,  nisi  cujus  Veritas  per 
justitiam  non  potest  aliter  reperiri,  hoc  terminabitur  judicio  Dei." — Jur. 
Feud.  Saxon.  §  100  (Senckenberg.  Corp.  Jur.  Feud.  German,  p.  249). — So, 
also,  in  a  later  text,  "judicium  Domini  fervida  aqua  vel  ferro  non  licet  in 
causa  aliqua  experiri,  nisi  in  qua  modis  aliis  non  poterit  Veritas  indagari." 
—Cap.  xxiv.  §  19.  (Ibid.  p.  337.) 


PLAINTIFF    SUBJECTED    TO    THE    ORDEAL.     253 

though  no  accuser  came  forward,  was  thrown  Into  prison 
fend  kept  there  until  he  could  prove  his  Innocence  by  the 
ordeal  <>f  water.1 

We  have  seen  above  occasional  instances  in  which  the 
accuser  or  plaintiff  offered  to  substantiate  his  veracity  by 
an  appeal  to  the  ordeal.  This  was  an  established  rule  with 
regarcrao  the  wager  of  battle,  but  not  as  respects  the  other 
tonus  of  the  judgment  of  God,  which  were  regarded  rather 
as  means  of  defence  than  of  attack.  I  have  met  with  but 
one  instance  of  general  instructions  for  their  employment 
by  the  accusing  party.  Archbishop  Ilincmar  directs  that 
cases  of  complaint  against  priests  for  dissolute  life  shall 
be  supported  by  seven  witnesses,  of  whom  one  must  sub- 
mit to  the  ordeal  to  prove  the  truth  of  his  companions' 
oaths,  as  a  wholesome  check  upon  perjury  and  subornation.3 
With  a  similar  object,  the  same  prelate  likewise  enjoins  it 
on  compurgators  chosen  b}r  the  accused,  on  his  failing  to 
obtain  the  support  of  those  who  had  been  selected  for  him 
by  his  judge.3  Allied  to  this  was  a  rule  for  its  employ- 
ment which  was  extensively  adopted,  allowing  the  accused 
the  privilege  of  compurgation  with  conjurators  in  certain 
cases,  only  requiring  him  to  submit  to  the  ordeal  on  his 
failing  to  procure  the  requisite  number  of  sponsors.  Thus, 
in  T94,  a  certain  Bishop  Peter,  who  was  condemned  by  the 
Synod  of  Frankfort  to  clear  himself,  with  two  or  three 

1  Etablissements  de  Normandie.  Tit.  de  Prison  (Ed.  Marnier).  Precisely 
similar  to  this  was  a  regulation  in  the  early  Bohemian  laws. — Bracilai 
Leges.  (Patrol.  151,  1258-9.)  And  an  almost  identical  provision  is  found  in 
the  Anglo-Saxon  jurisprudence. — L  Cnuti  Ssec.  cap.  xxxv. — L.  Henric.  I. 
cap.  Ixi.  §  5. — See,  also,  Assises  de  Jerusalem,  Baisse  Court,  eclix. 

2  Et,  exceptis  accusatoribus,  septem  sint  testes  idonei,  qui  inde  verita- 
tem  per  sacramentum  dicant,  ex  quibus  sex  jurent,  et  Septimus,  si  conditio 
vel  qualitas  personae  permittit,  ad  judicium  exeat  quod  illi  ex  veritate  inde 
per  sacramentum  dixerunt ;  quia  multi  jam  deprehensi  apud  nos  habentur, 
quoniam  pretio  conducti  se  perjuraverunt. — Ilincmari  Capit.  Synod,  ann. 
S52,  ii.  xxi. 


^HincirKiri  Epist,  xxxiv. 


254  THE    ORDEAL. 

conjurators,  of  the  suspicion  of  complicity  in  a  conspiracy 
against  Charlemagne,  being  unable  to  obtain  them,  one  of 
his  vassals  offered  to  pass  through  the  ordeal  in  his  behalf, 
and  on  his  success  the  Bishop  was  reinstated.1  That  this 
was  strictly  in  accordance  with  usage  is  shown  by  a  very 
early  text  of  the  Salique  Law,3  as  well  as  by  a  similar  pro- 
vision in  the  Ripuarian  code.3  Among  the  Anglo-Saxons 
it  likewise  obtained,  from  the  time  of  the  earliest  allusion 
to  the  ordeal  occurring  in  their  jurisprudence,  down  to  the 
period  of  the  Conquest.4  Somewhat  similar  in  tendency 
was  a  regulation  of  Frederic  Barbarossa,  by  which  a  slave 
suspected  of  theft  was  exposed  to  the  red-hot  iron,  unless 
his  master  would  release  him  by  an  oath.5  Occasionally 
it  was  also  resorted  to  when  the  accused  was  outsworn, 
after  having  endeavored  to  defend  himself  by  his  oath  or 
by  conjurators.  Popular  belief  might  give  to  the  accuser 
a  larger  number  of  men  willing  to  associate  themselves  in 
the  oath  of  accusation  than  the  defendant  could  find  to 
join  him  in  rebutting  it,  and  yet  his  guilt  might  not  as  yet 
be  clear.  In  such  cases,  the  ordeal  was  a  most  convenient 
resort.6 

These  regulations  give  to  the  ordeal  decidedly  the  aspect 
of  punishment,  as  it  was  thus  inflicted  on  those  whose  guilt 
was  so  generally  believed  that  they  could  find  none  to 
stand  up  with  them  at  the  altar  as  partakers  in  their  oath 

1  Capit.  Car.  Mag.  Ann.  794,  §  7. 

2  Se  juratores  non  potuerit  invenire,  aut  ad  ineum  ambulat  aut,  etc. — 
MS.  Uuelferbyt.  Tit.  xiv. 

3  Quod  si  ...  .  juratores  invenire  non  potuerit,  ad  ignem  seu  ad  sortem 
se  excusare  studeat. — L.  Ripuar.  Tit.  xxxi.  §  5. 

4  Dooms  of  Edward  the  Elder,  cap.  iii.  So  also  in  the  laws  of  William  the 
Conqueror,  Tit.  i.  cap.  xiv. — "Si  sen  escundira  sei  duzime  main.  E  si  il 
auer  nes  pot,  si  sen  defende  par  juise."  The  collection  known  by  the  name 
of  Henry  I.  has  a  similar  provision,  cap.  lxvi.  §  3. 

5  Si  servus  aliquis  culpatus  non  in  furto  fuerit  deprehensus,  sequente  die 
expurgabit  se  judicio  igniti  ferri,  vel  dominus  juramentum  pro  eo  praestabit. 
— Radevic.  de  Reb.  Frid.  Lib.  i.  cap.  xxvi. 

0  Concil.  Tribur.  ann.  S95,  c.  xxii. 


USED    AS    A    PUNISHMENT.  161 

of  denial;  and  tins  is  not  the  only  circumstance  which 
leads  us  to  believe  thai  it  was  frequently  so  regarded.    The 

graduated  scale  of  single  and  triple  ordeals  for  offences  of 
different  magnitudes  is  so  totally  a1  variance  with  the  theory 
of  miraculous  interposition  to  protect  innocence  and  punish 
guilt,  that  we  can  only  look  upon  it  as  a  mode  of  inflicting 
graduated  punishments  in  doubtful  cases,  thus  holding  up 
a  certain  penalty  in  terrorem  over  those  who  would  other- 
wise hope  to  escape  by  the  secrecy  of  their  crime — no  doubt 
with  a  comforting  conviction,  like  that  of  De  Montfort's 
priestly  adviser  at  the  sack  of  Beziers,  that  Heaven  would 
know  its  own.  This  same  principle  is  visible  in  a  provision 
of  the  charter  of  Loudun,  granted  by  Louis-le-Gros  in  1128, 
by  which  an  assault  committed  outside  of  the  liberties  of 
tlu'  commune  could  be  disproved  by  a  simple  sacramental 
oath  ;  but  if  within  the  limits  of  the  commune,  the  accused 
was  obliged  to  undergo  the  ordeal.1  Further  evidence  is 
a  Horded  by  the  principle,  interwoven  in  various  codes,  by 
which  a  first  crime  was  defensible  by  conjurators,  or  other 
means,  while  the  "  tiht-bysig"  man,  the  "homo  infamatus," 
one  of  evil  repute,  whose  character  had  been  previously 
compromised,  was  denied  this  privilege,  and  was  forced  at 
once  to  the  hot  iron  or  the  water.  Thus,  among  the  Anglo- 
Saxons,  in  the  earliest  allusion  to  the  ordeal  by  Edward  the 
Elder,  it  is  provided  that  perjured  persons,  or  those  who  had 
once  been  convicted,  should  not  be  deemed  thereafter  oath- 
worthy,  but  should  be  hurried  to  the  ordeal ;  a  regulation 
repeated  with  some  variations  in  the  laws  of  Ethelred,  Cnut, 
and  Henry  I.9  The  Carlovingian  legislation  establishes  a 
similar  principle,3  and  the  Council  of  Tribur,  in  895,  shows 

1  Chart.  Commun.  Laudun.  (Baluz.  et  Mansi  IV.  p.  39.) 

9  Ut  deinceps  non  sint  digni  juramento  sed  ordalio. — Legg.  Edwardi 

cap.  iii.  ;  Ethelredi  cap.  i.  §  1 ;   Cnuti  Saecul.  cap.  xxii.,  xxx.  ;   Henrici  I. 

cap.  Ixv.  §  3. 

3  Capit.  Car.  Mag.  I.  ann.  809,  cap.  xxviii. — Capit.  Ludov.  Pii.  i.  ann. 

819. 


256  THE    ORDEAL. 

it  to  be  still  in  force.1  Three  centuries  later,  the  legislation 
of  Flanders  shows  the  same  tendency,  the  code  granted  to 
Bruges  in  1190  providing  that  a  first  accusation  of  theft 
should  be  decided  by  witnesses,  while  a  second  was  to  be  met 
by  the  cold-water  ordeal.3  In  the  German  municipal  law  of 
the  thirteenth  century,  the  same  principle  is  observed.  An 
officer  of  the  mint  issuing  false  money  was  permitted  the 
first  time  to  swear  to  his  ignorance,  but  on  a  second  offence 
he  had  to  submit  to  the  ordeal;  and  it  was  similarly  en- 
joined on  those  who  had  become  infamous  on  account  of  a 
previous  conviction  of  theft.3  The  contemporary  jurispru- 
dence of  Spain  has  a  somewhat  similar  provision,  by  which 
a  woman  accused  of  homicide  could  not  be  exposed  to  the 
ordeal,  unless  she  could  be  proved  utterly  abandoned,  for 
which  a  curious  standard  was  requisite,*  and  this  is  the 
more  remarkable,  since  by  the  same  code  a  procuress  was 
forced  at  once  to  the  red-hot  iron  to  prove  her  innocence. 
In  the  legislation  of  Charlemagne,  there  is  a  curious  pro- 
vision, by  which  a  man  convicted  seven  times  of  theft  was 
no  longer  allowed  to  escape  on  payment  of  a  fine,  but  was 
forced  to  undergo  the  ordeal  of  fire.  If  he  succumbed,  he 
was  put  to  death ;  if  he  escaped  unhurt,  he  was  not  dis- 

1  Nobilis  homo  vel  ingenuus  ....  cum  duodecim  ingenuis  se  expurget. 

Si  antea  deprehensus  fuerit  in  furto  vel  perjurio  aut  falso  testimonio 

ferventi  aqua  aut  candenti  ferro  se  expurget. — Burchardi  Decret.  Lib.  xvt. 
cap.  19. 

2  Keure  de  la  Chatellenie  de  Bruges,  §  28.  Quodsi  postmodum  de  furto 
inpetitus  venerit,  purgabit  se  judicio  frigidse  aquae  in  suo  corpore  tantum. — 
(Warnkonig,  Hist,  de  la  Pland.  IV.  371.) 

3  Jur.  Provin.  Alaman.  cap.  clxxxvi.  §§  4,  6,  7;  cap.  ccclxxiv. ;  Jur. 
Provin.  Saxon.  Lib.  i.  Art.  39.  So,  also,  in  the  fourteenth  century,  the 
"  vir  famae  integraa"  cleared  himself  "juramento  super  reliquiis  sanctorum 
prsestito,"  while,  after  a  first  offence  "  purgare  se  eum  debere  portatione 
ferri  candentis,  vel  immissione  brachii  usque  ad  cubitura  in  aquam  ferven- 
tem,  vel  tandem  certamine  singulari,  pronunciatur." — Richstich  Landrecbt, 
cap.  Hi. 

4  Si  non  fuere  provada  por  mala,  que  aya  yazido  con  cinco  omes. — Fuero 
de  Baefa  (Villadiego,  Fuero  Juzgo,  fol.  317  a). 


USED    AS    A    TOB'TURI.  251 

charged  as  Innocent,  bnt  nib  lord  was  allowed  to  enter  bail 
for  his  future  good  behavior1 — a  hiode  at  oner  of  administer- 
ing punishment  and  of  ascertaining  whether  his  death  would 
be  agreeable  to  Heaven.  When  we  thus  regard  it  as  a 
penalty  on  those  who  by  misconduct  had  forfeited  the  con- 
fldence  of  their  fellow-men,  the  system  loses  part  of  its 
absurdit}',  in  proportion  as  it  departs  from  the  principle 
under  which  it  was  established. 

There  is  also  another  aspect  in  which  it  is  probable 
thai  the  ordeal  was  viewed  by  those  whose  common  sense 
must  have  shrunk  from  it  simply  as  an  appeal  to  the  judg- 
ment of  God.  There  can  be  little  doubt  that  it  was  fre- 
quently found  of  material  use  in  extorting  confession  or 
unwilling  testimony.  By  the  early  codes,  as  in  the  primi- 
tive Greek  and  Roman  law,  torture  could  be  applied  only 
to  slaves,  and  the  ordeal  was  a  legalized  torture,  applied 
under  circumstances  peculiarly  provocative  of  truth.2  In 
those  ages  of  faith,  the  professing  Christian,  conscious  of 
guilt,  must  indeed  have  been  hardened,  who  could  undergo 
the  most  awful  rites  of  his  religion,  pledging  his  salvation 
on  his  innocence,  and  knowing  under  such  circumstances 
that  the  direct  intervention  of  Heaven  could  alone  save 
him  from  having  his  hand  boiled  to  rags,3  after  which  he 
was  to  meet  the  full  punishment  of  his  crime,  and  perhaps 
in  addition  lose  a  member  for  the  perjury  committed.    With 

1  Capit.  Car.  Mag.  in.  Ann.  813,  cap.  46. 

3  The  close  relationship  hetween  some  forms  of  the  ordeal  and  torture  is 
exemplified  in  the  regulations  which  frequently  enabled  the  freeman  to  clear 
himself  of  accusations  by  compurgation,  while  the  slave  was  required  to 
undergo  the  ordeal.     See,  for  instance,  Concil.  Mogunt.  ann.  847,  can.  xxiv. 

3  The  severity  of  the  ordeal,  when  the  sufferer  had  no  friends  among  the 
operators  to  save  him,  may  be  deduced  from  the  description  of  a  hand  when 
released  from  its  three  days'  tying  up  after  its  plunge  into  hot  water  ;  "  in- 
flatam  admodum  et  excoriatam  sanieque  jam  came  putrida  effluentem  dex- 
teram  invitus  ostendit."  (Du  Cange,  s.  v.  Aqua  Ferv.  Judicium.)  In  this 
e*M,  the  sufferer  was  the  adversary  of  an  abbey,  of  which  the  monks  perhaps 
had  the  boiling  of  the  kettle. 

22* 


258  THE    ORDEAL. 

such  a  prospect,  all  motives  would  conspire  to  lead  him  to 
a  prompt  and  frank  acknowledgment  in  the  early  stages  of 
the  proceedings  against  him.  These  views  are  strength- 
ened by  the  fact  that  when,  in  the  thirteenth  centu^,  the 
judicial  use  of  torture,  as  a  means  of  obtaining  testimony 
and  confession,  was  becoming  systematized  and  generally 
employed,  the  ordeal  was  falling  into  desuetude  and  rapidly 
disappearing.  The  latter  had  fulfilled  its  mission,  and  the 
former  was  a  substitute  better  fitted  for  an  age  which 
reasoned  more,  believed  less,  and  at  the  same  time  was 
quite  as  arbitrary  and  violent  as  the  preceding.  A  further 
confirmation  of  this  supposition  is  afforded  by  the  coinci- 
dence that  the  only  primitive  jurisprudence  which  excluded 
the  ordeal — that  of  the  Wisigoths — was  likewise  the  only 
one  which  habitually  permitted  the  use  of  torture,1  the 
only  reference  to  the  ordeal  in  their  jurisprudence  being  a 
provision  which  directs  its  employment  as  a  preliminary  to 
the  more  regular  forms  of  torture. 

Some  of  the  ordeals,  however,  such  as  that  of  the  Eucha- 
rist, of  bread  and  cheese,  and  touching  the  dead  body,  do 
not  come  within  this  class,  but  they  addressed  themselves 
powerfully  to  the  conscience  and  imagination  of  the  ac- 

1  L.  Wisig.  Lib.  vi.  Tit.  i.  §  3. — An  epistle  attributed  both  to  Stephen  V. 
and  Sylvester  II.  shows  that  the  ordeal  was  evidently  regarded  as  a  torture 
by  those  whose  enlightenment  led  them  to  condemn  the  popular  faith  in  it 
as  a  superstition:  "Ferri  candentis  vel  aqua)  ferventis  examinatione  con- 
fessionem  extorqueri  a  quolibet,  sacri  non  censuerunt  canones,  et  quod  sanc- 
torum Patrum  documento  sancitum  non  est,  superstitiosa  adinventione  non 
est  praesumendum." — Ivon.  Carnot.  Epist.  74. — Can.  Consuluisti,  Caus.  II. 
q.  5.  That  the  ordeal  was  practically  regarded  as  a  torture,  giving  addi- 
tional weight  to  testimony,  is  shown  by  the  terms  of  an  offer  made  to  undergo 
it  by  a  priest  named  Adalger  when  in  the  Council  of  St.  Baseul  he  confessed 
the  part  he  had  taken  with  Arnoul,  Archbishop  of  Rheims,  in  Charles  of 
Lorraine's  resistance  to  the  usurpation  of  Hugh  Capet — "  Haec  si  quisquam 
vestrum  aliter  esse  putat,  meque  indignem  cui  credatur,  credat  igni,  ferventi 
aquae,  candenti  ferro ;  faciant  fidem  tormenta  quibus  non  sufficiant  mea 
verba."  (Concil.  Basol.  cap.  xi.)  It  is  observable  that  he  omits  the  cold- 
water  ordeal,  as  not  being  a  torture.  Rainer,  private  secretary  of  Arnoul, 
offered  to  prove  his  statement  by  giving  up  a  slave  to  walk  the  burning 
ploughshares  in  evidence  of  his  truth.    (Ibid.  cap.  xxx.) 


EFFECTS    0  N    I  HI    I  II  I  < I  I  N  A  TIO  X  .  959 

eased,  whose  cations  fortitude  n<>  doubl  often  gave  way 
onder  the  trial.1  In  oar  own  country,  and  almost  within 
our  own  time,  the  Latter  ordeal  was  revived  in  one  Instance 
With  this  object,  and  the  result  did  not  disappoint  the 
expectations  of  those  who  undertook  it.  In  the  case  of 
People  iw.  Johnson,  tried  in  New  York  in  1824,  the  sus- 
pected murderer  was  led  from  his  cell  to  the  hospital  where 
lay  the  body  of  the  victim,  which  lie  was  required  to  touch. 
Dissimulation  which  had  been  before  unshaken  failed  hi  in 
at  the  awful  moment ;  his  overstrung  nerves  gave  way, 
and  a  confession  was  faltered  forth.  The  proceeding  was 
sustained  by  court,  and  a  subsequent  attempt  at  retraction 
was  overruled.3  The  powerful  influence  of  such  motives 
is  shown  in  a  custom  which,  as  recently  as  1815,  was  still 
employed  at  Mandeure,  near  Montbelliard,  and  which  is 
perhaps  the  latest  European  instance  of  the  legalized  ap- 
plication of  an  ordeal.  When  a  theft  had  been  committed, 
the  inhabitants  were  summoned  to  assemble  after  vespers 
on  Sunday  at -the  place  of  judgment.  There  the  mayor 
summoned  the  guilty  person  to  make  restitution  and  live 
in  isolation  for  six  months.  If  this  appeal  proved  fruitless, 
recourse  was  had  to' the  trial  of  the  staff,  in  which  two 
magistrates  held  aloft  a  piece  of  wood,  under  which  every 
one  was  bound  to  pass.  No  instance  was  on  record  in 
Which  the  culprit  dared  to  do  this,  and  he  was  always  left 
alone.3 

There  are  two  peculiarities  of  the  system,  perhaps  worth 
alluding  to,  Avhich  may  be  thought  to  militate  against  the 
theory  of  its  use  as  a  torture.     The  one  is  the  permission 

1  As  regards  the  ordeal  of  bread,  Boceacio's  story  of  Calendrino  (Giorn. 
vni.  Nov.  6),  which  turns  upon  the  mixing  of  a  quantity  of  aloes  with  the 
food  intended  for  the  corsnccd,  perhaps  throws  some  light  on  the  miracles 
reported  so  freely  by  the  honest  monkish  chroniclers,  and  on  the  practices 
by  which  the  whole  system  was  rendered  subservient  to  the  interests  of  those 
intrusted  with  its  administration. 

'-  Wharton  and  Stille's  Med.  Jurisp.,  2d  Ed.,  1860. 

3  Miclielet,  Origines  des  Loix,  p.  349. 


200  THE    ORDEAL. 

sometimes  accorded  to  put  forward  substitutes  or  cham- 
pions, who  dared  the  fire  or  water  as  freely  as  the  field  of 
single  combat.  Of  this  custom  so  many  examples  have 
already  been  given  incidentally,  that  further  instances 
would  be  superfluous,  and  I  would  only  add  that  it  is  no- 
where permitted  as  a  general  rule  by  any  code,  except  in 
the  case  already  quoted  of  the  ordeal  of  the  cross,  where  it 
was  a  privilege  accorded  to  the  old  or  infirm,  and  probably 
only  as  a  local  custom.  That  a  person  rich  enough  to 
purchase  a  substitute,  or  powerful  enough  to  force  some 
unhappy  follower  or  vassal  to  take  his  place,  should  obtain 
a  favor  not  generally  allowed,  is  a  matter  of  course  in  the 
formative  periods  of  society;  accordingly,  it  will  be  ob- 
served that  all  the  instances  of  the  kind  mentioned  above 
relate  to  those  whose  dignity  or  station  may  well  have 
rendered  them  exceptional. 

This  is  further  •rendered  probable  by  the  fact  that  ex- 
emption from  the  ordeal  was  in  some  places  the  privilege 
of  freemen,  who  were  entitled  to  rebut  accusations  by  the 
safer  mode  of  procuring  a  definite  number  of  compurgators 
to  take  with  them  the  purgatorial  oath.  We  find  this 
alluded  to  as  early  as  the  seventh  century,  in  the  legis- 
lation of  the  Ripuarian  Franks,  among  whom  the  ordeal 
was  reserved  for  strangers  and  slaves.  In  895  the  Council 
of  Tribur  draws  the  line  with  a  distinctness  which  shows 
that  the  custom  was  well  established  at  that  period.1    I 

1  It  permits  the  "nobilis  homo  vel  ingenuus"  to  rebut  an  accusation  with 
twelve  compurgators,  but  if  he  had  previously  been  convicted  of  crime — 
"  sicut  qui  ingenuus  non  est,  ferventi  aqua  aut  candenti  ferro  se  expurget." 
(Burchardi  Decret.  Lib.  xvi.  cap.  19.) 

The  law  of  William  the  Conqueror  (Tit.  n.  c.  3.— Thorpe,  I.  488),  by  which 
the  duel  was  reserved  for  the  Norman,  and  the  vulgar  ordeal  for  the  Saxon, 
might  be  supposed  to  arise  from  a  similar  distinction.  In  reality,  however, 
it  was  only  preserving  the  ancestral  customs  of  the  races,  giving  to  the 
defendant  the  privilege  of  his  own  law.  The  duel  was  unknown  to  the 
Anglo-Saxons,  who  habitually  employed  the  ordeal,  while  the  Normans,  pre- 
vious to  the  Conquest,  according  to  Houard,  who  is  good  authority  (Anc. 
Loix  Franc.  I.  221-222),  only  appealed  to  the  sword. 


ALL    CLASSES    SUB.JKCTKD    TO     IT.  261 

haw  already  quoted  (p.  820)  a  document  of  1051  giving 
■  similar  regulation  in  Alsaee,  while  in  LI 92  the  burghers 
of  Ghent  inserted  it  in  a  charter  -which  (hey  extorted  from 
the  Countess  Matilda,  widow  of  Philip  I.1  So  when,  in 
1085,  the  Emperor  Benry  I Y.  proclaimed  the  Truce  of  God, 
at  the  Assembly  of  Main/,  he  directed  that  those  accused 
of  disregarding  it  should,  if  freemen,  clear  themselves  with 
twelve  approved  compurgators,  while  serfs  and  villeins 
were  forced  to  undergo  the  cold-water  ordeal.9 

The  other  objection  to  our  hypothesis  is  that  to  some 
extent  the  common  ordeal  was  a  plebeian  process,  while 
the  patricians  arrogated  to  themselves  the  wager  of  battle. 
This  distinction,  however,  hardly  existed  before  the  rise 
of  feudalism  gave  all  privileges  to  those  who  were  strong 
enough  to  seize  them,  and  even  then  it  was  by  no  means 
universal.  We  have  alread}'  seen  that  although  in  the 
early  part  of  the  eleventh  century  the  Emperor  Henry  II. 
undoubtedly  promulgated  such  a  rule,  yet  that  Glanville,  a 
hundred  and  fifty  years  later,  considers  the  red-hot  iron  as 
noble,  and  that  in  the  thirteenth  century  the  feudal  law  of 
Germany  prescribes  the  wasser-urteyll  for  territorial  dis- 
putes between  gentlemen.  In  the  earlier  codes  the  distinc- 
tion is  unknown,  so  that  we  are  justified  in  assuming  that 
no  general  principles  can  be  deduced  from  a  regulation  so 
late  in  its  appearance  and  so  uncertain  in  its  application. 

The  degree  of  confidence  really  inspired  by  the  results 
of  the  ordeal  is  a  somewhat  curious  subject  of  speculation, 

1  Si  cui  iinputetur  et  convictus  non  fuerit,  liber  per  duodecira  liberos  se 
purgabit,  non  liber  judicio  aqua)  frigida). — Keure  de  Gand,  §§  7,  8,  12. 
(Warnkonig,  Hist,  de  la  Fland.  II.  228.)  We  see  tbat  it  is  here  directed  to 
be  used  merely  in  default  of  other  testimony,  before  liberating  the  accused 
who  could  not  be  convicted. 

-  Cuicunque  vero  violatio  hujus  paeis  imposita  fuerit,  et  ipse  negaverit,  si 
ingenuus  est  aut  liber,  duodecim  probatis  se  expurget.  Si  servus,  tarn  lito 
qunm  ministerialis,  judicio  aqua)  frigida). — Henrici  IV.  Constit.  IV.  (Pa- 
trolog.  151,  1135.) 


T 


262  THE     ORDEAL. 

and  one  on  which  definite  opinions  are  not  easily  reached. 
Judicially,  the  trial  was  conclusive;  the  man  who  had  duly 
sunk  under  water,  walked  unharmed  among  the  ..burning, 
shares,  or  withdrawn  an  unblistered  hand  from  a  caldron 
of  legal  temperature,  stood  forth  among  his  fellows  as 
innocent.  So,  even  now,  the  verdict  of  twelve  fools  or 
knaves  in  a  jury-box  may  discharge  a  criminal,  against 
the  plainest  dictates  of  common  sense  ;  but  in  neither  case 
would  the  sentiments  of  the  community  be  changed  by  the 
result.  The  reverential  feelings  which  alone  could  impart 
faith  in  the  system  seem  scarcely  compatible  with  the  prac- 
tice of  compounding  for  ordeals,  by  which  a  man  was  per- 
mitted to  buy  himself  oft*,  by  settling  the  matter  with  his 
accuser.  This  mode  of  adjustment  was  not  extensively 
introduced,  but  it  nevertheless  existed  among  the  Anglo- 
Saxons,1  while  among  the  Franks  it  was  a  settled  custom, 
permitted  by  all  the  texts  of  the  Salique  law,  from  the 
earliest  to  the  latest.2  Charlemagne^  in  the  earlier  portion 
\  of  his  reign,  does  not  seem  to  have  entertained  much  re- 
spect for  the  judgment  of  God,  when  he  prescribed  the 
administration  of  the  ordeal  for  trifling  affairs  only,  cases 
of  magnitude  being  reserved  for  the  regular  investigation 

1  Dooms  of  JEthelstan,  i.  cap.  21. 

2  First  Text,  Tit.  liii.  and  L.  Emend.  Tit.  lv. — A  person  condemned  by 
the  court  to  undergo  the  ordeal  could,  by  a  transaction  with  the  aggrieved 
party,  purchase  the  privilege  of  clearing  himself  by  canonical  compurgation, 
and  thus  escape  the  severer  trial.  He  was  bound  to  pay  his  accuser  only  a 
portion  of  the  fine  which  he  would  incur  if  proved  guilty — a  portion  varying 
with  different  offences  from  one-fourth  to  one-sixth  of  the  wehr-gild.  The 
interests  of  the  tribunal  were  guarded  by  a  clause  which  compelled  him  to 
pay  to  the  grafio,  or  judge,  the  full  fredum,  or  public  fine,  if  his  conscience 
impelled  him  to  submit  to  an  arrangement  for  more  than  the  legal  per- 
centage. It  is  on  this  custom  that  Montesquieu  relies  to  support  his  theory 
of  the  absence  of  negative  proofs  in  the  Frankish  jurisprudence.  The  fallacy 
of  the  argument  is  further  shown  by  the  existence  of  a  similar  privilege  in 
the  Anglo-Saxon  laws,  with  which  the  learned  jurist  endeavors  to  establish 
a  special  contrast. 


CONFIDENCE    HIP081D    IN    IT.  2G3 

of  the  law.'  Thirty  years  Later,  the  public  mind  appears 
afflicted  with  the  same  doubts,  for  we  find  the  monarch 
endeavoring  i<>  enforce  confidence  in  the  system  by  his 
commands."  How  far  he  succeeded  in  this  difficult  attempt, 
we  have  no  means  of  ascertaining-;  but  a  rule  of  English 
law,  lour  hundred  years  Later,  during  the  expiring  struggles 
of  the  practice,  would  show  that  it  was  regarded  as  by  no 
means  conclusive,  when  I  malefactor  who  had  established 
his  innocence  by  hot  water  or  iron  obtained  thereby  only 
a  commutation  of  punishment,  and  was  forced  to  leave  the 
kingdom  in  perpetual  exile.3  St.  Ivo  of  Chartres,  though 
he  had  no  scruple  in  recommending  and  enjoining  the 
ordeal,  and,  on  one  occasion  at  least,  pronounced  its  de- 
cisions as  beyond  appeal,  yet  he  has  placed  on  record  his 
conviction  of  its  insufficiency,  and  his  experience  that  the 
mysterious  judgment  of  God  not  infrequently  allowed  in 
this  manner  the  guilty  to  escape  and  the  innocent  to  be 
punished.4  There  is  also  evidence  that  the  manifest  in- 
justice of  the  results  obtained  not  infrequently  tried  the 
faith  of  believers  to  a  degree  which  required  the  most 
ingenious  sophistry  for  an  explanation.  When,  in  1127,  the 
sacrilegious  murder  of  Charles  the  Good,  Earl  of  Flanders, 

1  Quod  si  accusatus  contendere  voluerit  de  ipso  perjurio  stent  ad  crucem. 
.  .  .  Hoc  vero  de  minoribus  rebus.  De  majoribus  vero,  aut  de  statu  inge- 
nuitatis,  secundum  legem  custodiant. — Capit.  Car.  Mag.  ann.  779,  §  10. 
That  this  was  respected  as  law  in  force,  nearly  a  hundred  years  later,  is 
shown  by  its  being  included  in  the  collection  of  Capitularies  by  Benedict  the 
Levite.     (Lib.  v.  cap.  196.) 

1  Ut  omnes  judicio  Dei  credant  absque  dubitatione. — Capit.  Car.  Mag.  i. 
ann.  809,  §  20. 

3  Constitutio  quidem  talis  fuit,  quod  quamvis  aliquis  se  purgaret  judicio 
aquae  vel  ignis,  hie  nihilominus  regnum  abjuraret. — Bracton  Lib.  III.  Tract 
ii.  cap.  16,  §  3. 

4  Pro  quibus  aliquem  condemnare  nee  usus  majorum  nee  ulla  legum  con- 
cedit  auctoritas.  .  .  .  Simili  modo,  cauterium  militis  nullum  tibi  certum 
prebftt  argumentum,  cum  per  examinationem  ferri  candentis  occulto  Dei 
judicio  multos  videamus  nocentes  liberatos,  multos  innocentes  saepe  damna- 
tos. — Ivon.  Carnot.  Epist.  ccv. 


264  THE    ORDEAL. 

sent  a  thrill  of  horror  throughout  Europe,  Lambert  of  Re- 
denburg,  whose  participation  in  the  crime  was  notorious, 
succeeded  in  clearing  himself  by  the  hot  iron.  Shortly 
afterwards  he  undertook  the  siege  of  Ostbourg,  which  he 
prosecuted  with  great  cruelty,  when  he  was  killed  in  a  sally 
of  the  besieged.  The  pious  Galbert  assumes  that  Lambert, 
notwithstanding  his  guilt,  escaped  at  the  ordeal  in  conse- 
quence of  his  humility  and  repentance,  and  philosophically 
adds :  "  Thus  it  is  that  in  battle  the  unjust  man  is  killed, 
although  in  the  ordeal  of  water  or  of  fire  he  may  escape,  if 
truly  repentant."1  The  same  doctrine  was  enunciated  under 
John  Cantacuzenes,  in  the  middle  of  the  fourteenth  century, 
by  a  Bishop  of  Didymoteichus  in  Thrace.  A  frail  fair  one 
being  violently  suspected  by  her  husband,  the  ordeal  of  hot 
iron  was  demanded  by  him.  In  this  strait  she  applied  to 
the  good  Bishop,  and  he,  being  convinced  of  her  repentance 
and  intention  to  sin  no  more,  assured  her  that  in  such  a 
frame  of  mind  she  might  safely  venture  on  the  trial,  and 
she  accordingly  carried  the  glowing  bar  triumphantly  twice 
around  the  Bishop's  chair,  to  the  entire  satisfaction  of  her 
lord  and  master.2  While  repentance  thus  enabled  the  crim- 
inal to  escape,  on  the  other  hand  the  innocent  were  some- 
times held  to  be  liable  to  conviction,  on  account  of  previous 
misdeeds.  A  striking  instance  of  the  vague  notions  cur- 
rent is  afforded  in  the  middle  of  the  eleventh  century  by  a 
case  related  by.Othlonus,  in  which  a  man  accused  of  horse- 
stealing was  tried  by  the  cold-water  ordeal  and  found  guilty. 
Knowing  his  own  innocence,  he  appealed  to  the  surround- 
ing monks,  and  was  told  that  it  must  be  in  consequence  of 
some  other  sin  not  properly  redeemed  by  penance.  As  he 
had  confessed  and  received  absolution  before  the  trial,  he 
denied  this,  till  one  of  them  pointed  out  that  in  place  of 
allowing  his  beard  to  grow,  as  was  meet  for  a  layman,  he 
had  impiously  carried  the  smooth  chin  reserved  for  ecclesi- 

1  Vit.  Carol.  Comit.  Flandren.  cap.  xx. 

3  Collin  de  Plancy,  op.  cit.  s.  v.  Fer  Chaud. 


CONFIDENCE    REPOSED    IN    IT.  2G5 

astica.  Confessing  his  guilty  promising  due  penance, and 
rowing  never  to  touch  liis  beard  with  ■  razor  again,  lie  wms 
conducted  :t  second  time-  to  tin-  water,  and  being  now  free 
from  nil  unrepented  sin,  he  was  triumphantly  acquitted.4 

In  feet, as  the  result  depended  mostly  upon  fchoee  who 
administered  flic  Ordeal,  it  conferred  an  irresponsible 
power  to  release  or  to  condemn,  and  it  would  he  expecting 
too  much  of  liuman  nature  to  suppose  that  men  did  not 
yield  frequently  to  the  temptation  to  abuse  that  power. 
The  injustice  thus  practised  must  often  have  shaken  the 
most  robust  faith,  and  this  cause  Of  disbelief  would  receive 
additional  strength  from  the  fact  that  the  result  itself  was 
not  seldom  in  doubt,  victory  being  equally  claimed  by  both 
parties.  Of  this  we  have  already  seen  examples  in  the 
a  Hairs  of  the  lance  of  St.  Andrew  and  of  the  Archbishop  of 
Milan,  and  somewhat  similar  is  an  incident  recorded  by 
the  r>ollandists  in  the  life  of  St.  Swithin,  in  which,  by  mi- 
raculous interposition,  the  opposing  parties  beheld  entirely 
different  results  from  an  appeal  to  the  red-hot  iron.3 

Efforts  of  course  were  made  from  time  to  time  to  preserve 
the  purity  of  the  appeal,  and  to  secure  impartiality  in  its 
application.  Clotair  II.,  in  595,  directs  that  three  chosen 
persons  shall  attend  on  each  side  to  prevent  collusion  ;3 
and  among  the  Anglo-Saxons,  some  four  hundred  years 
later,  Ethelred  enjoins  the  presence  of  the  prosecutor  under 
penalty  of  loss  of  suit  and  fine  of  twenty  ores,  apparently 

1  Othlon.  Narrat  de  Mirac.  quod  nuper  accidit,  &c.  (Patrol.  146,  243-4.) 
Lapsing  again,  however,  into  the  sin  of  shaving,  upon  a  quibble  as  to  the 
kind  of  instrument  employed,  the  anger  of  Heaven  manifested  itself  by 
allowing  him  to  fall  into  the  hands  of  an  enemy  who  put  out  his  eyes. 

1  Enimvero  mirum  fuit  ultra  modum,  quod  fautores  arsuram  et  infla- 
tionem  conspiciebant;  criminatores  ita  sanam  ejus  videbant  palmam,  quasi 
penitus  fulvum  non  tetigisset  ferrum. — Mirac.  S.  Swithuni  c.  ii  §  37.  In 
this  case,  the  patient  was  a  slave,  whose  master  had  vowed  to  give  him  to 
the  church  in  case  he  escaped. 

3  Ad  utramque  partem  sint  ternas  personas  electas,  ne  conludius  fieri 
possit. — Decret.  Chlotharii  II.  cap.  vn. 

23 


266  THE    ORDEAL. 

for  the  same  object,  as  well  as  to  give  authenticity  to  the 
decision.1  So  in  Hungary,  the  laws  of  St.  Ladislas,  in  1092, 
direct  that  three  sworn  witnesses  shall  be  present  to  attest 
the' innocence  or  guilt  of  the  accused  as  demonstrated  by 
the  result.3  A  law  adopted  by  the  Scottish  Parliament 
under  William  the  Lion,  in  the  second  half  of  the  twelfth 
century,  shows  that  corruption  was  not  uncommon,  by  for- 
bidding those  concerned  in  the  administratiorroi  ordeals 
from  taking  any  bribes  to  divert  the  course  of  justice,3  and 
a  further  precaution  was  taken  by  prohibiting  the  Barons 
from  adjudging  the  ordeal  without  the  intervention  of  the 
sheriff  to  see  that  law  and  justice  were  observed.4  In  the 
trial  by  red-hot  iron,  a  widely  prevailing  custom  ordered 
that  for  three  days  previous  the  hand  should  be  wrapped  up 
to  guard  against  its  being  fortified,  and  among  the  Greeks 
a  careful  provision  was  made  that  the  hand  should  be  tho- 
roughly washed  and  allowed  to  touch  nothing  afterwards, 
lest  there  should  be  an  opportunity  of  anointing  it  with 
unguents*  which  would  enable  it  to  resist  the  fire.5  These 
regulations  show  that  evils  were  recognized,  but  we  may  rea- 
sonably hesitate  to  believe  that  the  remedies  were  effectual. 

The  Church  was  not  a  unit  in  its  relations  to  the  ordeal. 
During  the  earlier  periods,  indeed,  no  question  seems  to 
have  been  entertained  as  to  the  propriety  of  the  practice ; 
it  was  sanctioned  by  councils,  and  administered  by  ecclesi- 
astics, and,  as  we  have  seen,  numerous  formulas  of  prayers 
and  adjurations  were  authoritatively  provided  for  all  the 

1  Ethelred,  in.  §  4. 

3  Synod.  Zabolcs,  can.  27  (Batthyani,  Legg.  Eccles.  Hung.  T.  I.  p.  439). 

3  Et  quod  propter  factum  judicium  aqua),  vel  ferri,  vel  duelli,  aut  cujus- 
cunque  modi  judicii,  nullam  sument  aut  capient  pecuniam,  aut  aliud  bene- 
ficium,  pro  quo  effectus  justitia;  maneat  imperfectus. — Statut.  Wilhelmi  Regis 
cap.  7,  §  3.     (Skene  II.  4.) 

4  Nulli  Baroni  liceat  tenere  curiam  aqua?  vel  ferri,  nisi  Vicecomes  vel  ejus 
servientes  intersint,  ad  videndum  quod  lex  et  justitia  fiat. — Ibid.  cap.  16. 

6  Du  Cange,  s.  v.  Ferrum  caucleus. 


ECCLESIA8TICAL    OPPOSITION.  26? 

different  varieties  in  use.  This  unanimity  was,  however, 
soon  disturbed.  At  the  oommencemenl  of  the  sixth  cen- 
tury, A vitus.  liishop  of  Vieuue.  remonstrated  freely  with 
Gnndobald  on  account  of  the  prominence  given  to  the 
battle-ordeal  in  the  Burgundian  eode ;  and  some  three  cen- 
turies later,  St.  Agobard,  Archbishop  of  Lyons,  attacked 
the  whole  system  in  two  powerful  treatises,  which  in  m  any 
points  display  a  breadth  of  view  and  clearness  of  reasoning 
I'm-  in  advance  of  his  age.1  Soon  after,  Leo  IV.,  about  the 
middle  of  the  ninth  century,  condemned  it  in  a  letter  to 
the  English  bishops ;  some  thirty  years  later,  Stephen  V. 
repeated  the  disapproval ;  in  the  tenth  century,  Sylvester  II. 
opposed  it ;  and  succeeding  pontiffs,  such  as  Alexander  II. 
and  Alexander  III.,  in  vain  protested  against  it.  In  this, 
the  chiefs  of  the  Church  placed  themselves  in  opposition  to 
their  subordinates.  No  ordeal  could  be  conducted  without 
priestly  aid,  and  the  frequency  of  its  employment,  which 
has  been  seen  above,  shows  how  little  the  Papal  exhorta- 
tions were  respected  by  the  ministers  of  the  Church.  Nor 
were  they  contented  with  simple  disregard ;  defenders  were 
not  wanting  to  pronounce  the  ordeal  in  accordance  with  the 
Divine  law,  and  it  was  repeatedly  sanctioned  by  provincial 
synods  and  councils.  In  853,  the  Synod  of  Soissons  ordered 
13 urehard,  Bishop  of  Chartres,  to  prove  his  fitness  for  the 
episcopal  office  by  undergoing  it.3  Hincmar,  Archbishop 
of  Kheims,  lent  to  it  all  the  influence  of  his  commanding 
talents  and  position;  the  Council  of  Mainz  in  888,  and 
that  of  Tribur  near  Mainz  in  895,  recommended  it ;  that 
of  Tours  in  925  ordered  it  for  the  decision  of  a  quarrel 
between  two  priests  respecting  certain  tithes  ;3  the  synod 
of  the  province  of  Mainz  in  1 028  authorized  the  hot  iron 
in  a  case  of  murder  ;4  that  of  Elne  in  1065  recognized  it ; 

1  The  "Liber  adversus  Legem  Gundobadi"  and  "Liber  contra  Judicium 
Dei." 

s  Capit.  Carol.  Calvi  Tit.  XI.  c.  iii.     (Baluze.) 

3  Concil.  Turon.  ann.  925  (Martene  et  Durand.  T.  IV.  pp.  72-3). 

4  Annalist.  Saxo.  ann.  1028. 


268  .  THE     ORDEAL. 

that  of  Auch  in  1068  confirmed  its  use;  Burckhart,  Bishop 
of  Worms,  whose  collection  of  canons  is  still  an  authority, 
in  1023  assisted  at  the  Council  of  Selingenstadt,  which 
directed  its  employment.  The  Synod  of  Gran,  in  1099, 
decided  that  the  ordeal  of  hot  iron  might  be  administered 
during  Lent,  except  in  cases  involving  the  shedding  of 
blood.1  In  the  twelfth  century,  we  find  St.  Bernard  alluding 
approvingly  to  the  conviction  of  heretics  by  the  cold-water 
process,3  of  which  Guibert  de  Nogent  gives  us  an  instance 
wherein  he  aided  the  Bishop  of  Soissons  in  administering 
it  to  two  backsliders  with  complete  success.3  Prelates 
were  everywhere  found  granting  charters  containing  the 
privilege  of  conducting  trials  in  this  manner.  It  was  some- 
times specially  appropriated  to  members  of  *he  church, 
who  claimed  it,  under  the  name  of  "Lex  Monachorum,"  as 
a  class  privilege  exempting  them  from  being  parties  to 
the  more  barbarous  and  uncanonical  wager  of  battle;4  and 
in  1061  a  charter  of  John,  Bishop  of  Avranches,  to  the 
Abbot  of  Mout  S.  Michel,  alludes  to  hot  water  and  iron  as 
the  only  mode  of  trying  priests  charged  with  offences  of 
magnitude.5  There  was  therefore  but  slender  ground  for 
so  eminent  a  canonist  as  St.  Ivo  of  Chartres,  about  the 
same  period,  to  insist  that  ecclesiastics  enjoyed  immunity 
from  it,  while  admitting  that  the  incredulity  of  mankind 
sometimes  required  an  appeal  to  the  decision  of  Heaven, 
even  though,  such  appeals  were  not  commanded  by  the 

1  Batthyani,  Legg.  Eccles.  Hung.  II.  126. 

2  Examinati  judicio  aquae  mendaces  inventi  sunt  ....  aqua  eos  non  sus- 
cipiente. — In  Cantica,  Sermo  66.     (Aineilhon.) 

3  De  Vita  sua,  Lib.  in.  cap.  18. 

1  Theodericus  Abbas  Vice- Com  it  em  adiit  paratus  aut  calidi  ferri  judicio 
secundum  legem  monachorum  per  suum  hominem  probare,  aut  scuto  et 
baculo  secundum  legem  secularium  deffendere. — Annal.  Benedict.  L.  57,  No. 
74,  ann.  1036  {ap.  Houard,  Loix  Anc.  Fran.  I.  267). 

5  Judicium  ferri  igniti  et  aquae  ferventis  Abrincis  portaretur,  si  clerici 
lapsi  in  culpam  degradationis  forte  invenirentur. — Chart.  Joan.  Abrinc. 
(Patrolog.  147,  266.) 


INFLUENCE    OP    THE.     OHUftOff.  260 

Divine  law.1     Pope  Calixtua  II.  himself,  about  the  same 

period,  gave  his  sanction  to  the  System,  in  the  Council  of 
Khcims.  in  l  1 1 9.9  About  the  same  period,  the  Learned 
priest  Honorius  of  Antnn  specifies  the  benediction  of  the 
iron  and  water  of  the  ordeal  as  part  of  the  legitimate  func- 
tions of  his  order;3  and  even  Gratian,  in  1151,  hesitates  to 
condemn  the  whole  system,  preferring  to  consider  the  canon 
of  Stephen  V.  as  prohibiting  only  the  ordeals  of  hot  water 

1  Herbert,  Bishop  of  le  Man?,  was  accused  by  Henry  I.  of  England  of  en- 
deavoring to  betray  that  city  to  its  former  master,  and  was  ordered  to  prove 
his  innocence  by  the  ordeal  of  hot  iron.  Ivo  assured  him  (Epist.  74) 
that  no  law  or  custom  required  it  of  an  ecclesiastic,  and  we  may  presume 
that  churchmen  knew  too  much  of  the  ordeal  to  trust  themselves  willingly 
to  it,  except  where  the  management  was  in  their  own  hands.  A  century 
earlier,  St.  Abbo  of  Fleury  had  claimed  the  same  exemption  for  his  order — 
"Ecce  fama  exiit,  quod  contra  divinas  humanasque  leges  abbas  ignito  ferro 
se  purgare  voluit."  (Abbon.  Floriac  Epist.  viii.)  Ivo,  however,  allows  it 
for  laymen.  "Non  negamus  tamen  quin  ad  divina  aliquando  recurrendum 
sit  testimonia  quando,  praecedente  ordinaria  accusatrone,  omnino  desunt 
humana  testimonia :  non  quod  lex  hoc  instituerit  divina,  sed  quod  exigat 
incredulitas  humana."  (Epist.  252.)  And  again:  "Vel,  si  id  facere  non 
poterit,  candentis  ferri  examinatione  innocentiam  suam  comprobet.  Si  base 
causa  apud  me  ita  ventilaretur,  ita  earn  vellem  tractari"  (Epist.  249).  And 
in  another  instance  he  pronounces  the  result  of  such  a  trial  to  be  a  decision 
beyond  appeal.  "Audivi  enim  quod  vir  ille  de  quo  agitur,  de  objecto  crimine 
examinatione  igniti  ferri  se  purgaverit,  et  a  laesione  ignis  illaesus  repertus  sit. 
Quod  si  ita  est  .  .  .  contra  divinum  testimonium  nullum  ulterius  investigan- 
dum  intelligo  esse  judicium."    (Epist.  232.) 

The  immunity  claimed  by  ecclesiastics  in  England  also  is  shown  by  Ecg- 
behrt,  Archbishop  of  York,  who  directed  that  when  they  were  unable  to  pro- 
cure compurgators,  their  unsupported  oath  on  the  cross  was  sufficient,  their 
punishment,  if  guilty,  being  left  to  God.  "Pro  idcirco  sancimus  eum  cui 
crimen  impingitur,  ut  ponat  super  caput  ejus  crucem  Domini,  et  testetur  per 
Viventem  in  secula,  cujus  patibulum  est  crux,  sese  immunem  esse  a  peccato 
hujusmodi.  Et  sic  omnia  dimittenda  sunt  judicio  Dei." — Dialog.  Ecgbert. 
Ebor.  Interrog.  in.     (Thorpe.  II.  88) 

2  Du  Cange,  s.  v.  Judicium  probabile. 

3  Gemma  Animas,  Lib.  i.  cap.  181.  At  least  this  is  the  only  reading  which 
will  make  sense  of  the  passage — "  Horum  officium  est  .  .  .  vel  nuptias  vel 
arma,  vel  peras,  vel  baculos  vel  judicia  ferre  et  aquas  vel  candelas  .  .  . 
benedicere,"  where  "ferre  et  aquas"  is  evidently  corrupt  for  "ferri  et 
aqua)." 

23* 


270  THE     ORDEAL. 

and  iron.1  As  late  as  1215,  the  ferocious  inquisitor  Conrad 
of  Marburg  made  frightful  use  of  the  hot  iron  in  eradicating 
the  Albigensian  heresy  which  was  spreading  through  Ger- 
many ;  in  that  year  he  examined  by  its  means  no  less  than 
eighty  unfortunates  in  Strasburg  alone,  nearly  all  of  whom 
were  forthwith  transferred  to  the  stake.3 

This  discrepancy  is  easily  explained.  During  the  tenth 
and  eleventh  centuries,  the  chair  of  St.  Peter  was  occupied 
too  often  by  men  whose  more  appropriate  sphere  of  action 
was  the  brothel  or  the  arena,  and  the  influence  of  the  Papacy 
was  feeble  in  the  extreme.3  The  Eternal  City  was  civilly 
and  morally  a  lazar-house,  and  the  Popes  had  too  much  to 
do  in  maintaining  themselves  upon  their  tottering  thrones 
to  liave  leisure  or  inclination  for  combined  and  systematic 
efforts  to  extend  their  power.  The  Italian  expeditions  of 
the  Saxon  and  Franconian  Emperors  gradually  brought 
Italy  out  of  the  isolation  into  which  it  had  fallen,  and 
under  Teutonic  auspices  the  character  of  the  Pontiffs 
improved  as  their  circle  of  influence  widened.  At  length 
such  men  as  Gregory  VII.  and  Alexander  III.  were  able  to 
claim  supremacy  over  both  temporal  and  spiritual  affairs, 
and,  after  a  long  resistance  on  the  part  of  the  great  body 
of  ecclesiastics,  the  tiara  triumphed  over  the  mitre.  During 
this  period,  the  clergy  found  in  the  administration  of  the 

1  Hoc  autem  utrum  ad  omnia  genera  purgationis,  an  ad  haec  duo  tantum, 
quse  hie  prohibita  esse  videntur,  pertineat,  non  immerito  dubitatur  propter 
sacrificium  zelotypias,  et  illud  Gregorii. — Can.  Consuluisti,  caus.  II.  Quasst.  5. 

2  Trithem.  Cbron.  Hirsaug.  ann.  1215. 

3  In  963,  a  council  of  bishops  held  by  Otho  I.  to  depose  John  XII.  pro- 
nounced that  the  Pope  had  turned  his  residence  into  a  brothel — "sanctum 
palatium  lupanar  et  prostibulum  fecisse" — and  was  in  the  habit  of  leading 
his  own  soldiers  "incendia  fecisse,  ense  accinctum,  galea  et  lorica  indutum 
esse."  (Liutprandi  Hist.  Otton.  cap.  x.)  Otho  III.  in  998,  when  restoring 
a  portion  of  the  alienated  patrimony  of  St.  Peter,  alludes  to  the  diminished 
influence  and  authority  of  the  Papal  See.  "  Romam  caput  mundi  profitemur. 
Romanam  Ecclesiam  matrem  omnium  Ecclesiarum  esse  testamur  ;  sed  incu- 
ria  et  inscientia  Pontificum  longe  suae  claritatis  titulos  obfuscasse."  (Goldast. 
Constit.  Imp.  I.  226.) 


INFLUENT  |    or    tiii:    0HUROH.  i2  7  1 

ordeal  a  source  of  power  and  profit  which  n:it  ur:illy  rendered 
them  unwilling  to  abandon  it  :it  the  Papa]  mandate.  There 
were  fees  to  be.  received  for  its  honest,1  bribes  for  its  dis- 
honest,  application ;  daartercd  privileges  existed  in  favor  of 
churches  and  monasteries,  by  which  they  derived  a  certain 
revenue,  and  the  holy  relics  in  their  keeping  were  rendered 
a  source  of  gain  considerably  greater  than  that  which  ac- 
crued merely  from  the  devotion  of  the  faithful.3  It  afforded 
the  means  of  awing  the  laity,  by  rendering  the  priest  a  spe- 
cial instrument  of  Divine  justice,  into  whose  hands  every 
man  felt  that  he  was  at  any  moment  liable  to  fall;  and 

1  By  the  acts  of  the  Synod  of  Lillebonne,  in  1080,  a  conviction  by  the 
hot-iron  ordeal  entailed  a  fine  for  the  benefit  of  the  Bishop.  (Orderic.  Vital. 
Lib.  y.  cap.  v.)  By  the  laws  of  St.  Ladislas,  in  Ilungary  the  stipend  of  the 
officiating  priest  for  the  red-hot  iron  was  double  that  which  he  received  for 
the  water  ordeal — "  Presbyter  de  ferro  duas  pensas  et  de  aqua  unam  pensam 
accipiat."— Synod.  Zabolcs,  ann.  1092,  can.  27  (Batthyani,  T.  I.  p.  439). 
Oddly  enough,  the  Swedish  laws  made  the  successful  party  pay  the  fee  of  the 
officiating  priest — a  practice  sufficiently  degrading  to  the  sacerdotal  charac- 
ter. "  Si  fuerit  innocens  judicatus,  persolvat  laboris  sui  pretium  sacerdoti : 
si  vero  culpabilis,  ad  actorem  illius  mercedis  solutio,  juxta  ecclesia;  vel  pro- 
vincise  consuetudinem  pertinebit." — Leg.  Scanicar.  Lib.  vn.  c.  15  (Du  Cange, 
s.  v.  Ferrum  candens) . 

5  Charters  of  this  nature  are  almost  too  numerous  to  require  more  than  an 
allusion.  One  or  two  examples  may,  however,  be  quoted.  Thus  Thibaut  the 
Great  of  Champagne,  in  1148.  grants  to  the  church  of  St.  Mary  Magdalen  of 
Chateaudun  the  exclusive  privilege  of  administering  the  necessary  oaths  on 
such  occasions  :  "  Ne  alicui  liceret  exhibere  sancta  ad  sacramenta  juranda 
in  villa  Castriduni  praeter  ministris  praefatae  ecclesise,  omnibus  duellis  vel 
sacramentis,"  etc.  (Du  Cange,  s.  v.  Adramire.)  In  1182  we  find  the  Vicomte 
de  Beam  making  over  to  the  Abbey  of  la  Seauve  the  revenue  arising  from 
the  marble  basin  used  for  the  trial  by  boiling  water  at  Oavarret.  (Revue 
Hist,  de  Droit,  1861,  p.  478.)  Spelman  gives  the  following,  by  which 
Henry  III.,  in  1227,  granted  to  the  monks  of  Semplingham  the  right  to  hold 
the  ordeal,  among  other  jurisdictions  :  "  Habeant  .  .  .  curiam  suam  et  justi- 
tiam,  cum  saka  et  soka  et  thol  et  theam  .  .  .  et  ordell  et  orest,"  etc. 

Perhaps  the  most  remarkable  example  is  contained  in  the  Statutes  of  King 
Coloman  of  Hungary,  collected  in  1099,  by  which  he  prohibits  the  adminis- 
tration of  the  ordeal  in  the  smaller  churches,  reserving  the  privilege  to  the 
cathedral  seats  and  other  important  establishments. — Decret.  Coloman.  c.  11. 
(Batthyani,  T.  I.  p.  454.) 


272  THE     ORDEAL. 

even  worse  uses  were  sometimes  made  of  the  irresponsible 
power  thus  intrusted  to  unworthy  ministers.  From  the 
decretals  of  Alexander  III.  we  learn  authoritatively  that 
the  extortion  of  money  from  innocent  persons  by  its  in- 
strumentality was  a  notorious  fact1 — a  testimony  confirmed 
by  Ekkehardus  Junior,  who,  a  century  earlier,  makes  the 
same  accusation,  and  moreover  inveighs  bitterly  against 
the  priests  who,  to  gratify  the  vilest  instincts,  were  in  the 
habit  of  exposing  women  to  the  ordeal  of  cold  water,  that 
they  might  strip  them  for  the  purpose.3 

At  length,  when  the  Papal  authority  reached  its  culmi- 
nating point,  a  vigorous  and  sustained  effort  to  abolish  the 
whole  system  was  made  by  the  Popes  who  occupied  the 
pontifical  throne  from  1159  to  1227.  Nothing  can  be  more 
peremptory  than  the  prohibition  uttered  by  Alexander  III.3 
In  1181,  Lucius  III.  pronounced  null  and  void  the  acquittal 
of  a  priest  charged  with  homicide,  who  had  undergone  the 
water-ordeal,  and  ordered  him  to  prove  his  innocence  with 
compurgators,4  and  the  blow  was  followed  up  by  his  succes- 
sors. Under  Innocent  III.,  the  Fourth  Council  of  Lateran, 
in  1215,  formally  forbade  the  employment  of  any  ecclesias- 
tical ceremonies  in  such  trials  ;5  and  as  the  moral  influence 
of  the  ordeal  depended  entirely  upon  its  religious  associa- 
tions, a  strict  observance  of  this  canon  must  speedily  have 
swept  the  whole  system  into  oblivion.  Yet  at  this  very 
time  the  inquisitor  Conrad  of  Marburg  was  employing  in 

1  Post  Concil.  Lateran.  P.  n.  cap.  3,  11. 

-  Holophernicos  ....  Presbyteros,  qui  animas  hominum  carissime  appre- 
cietas  vendant;  foeminas  nudatas  aquis  immergi  impudicis  oeulis  curiose  per- 
spiciant,  autgrandi  se  pretio  redimere  cogant. — De  Casibus  S.  Galli,  cap.  xiv. 

3  Nee  ipsum  exhibere,  nee  aliquomodote  volumus  postulare,  imo  apostolica 
authoritate  prohibemus  firmissime. — Alex.  III.  Epist.  74. 

4  Can.  Ex  tuarum,  Extra,  De  purgatione  canonica. 

s  Nee  .  .  .  quisquam  purgationi  aquae  ferventis  vel  frigidse,  seu  ferri  can- 
dentis  ritum  cujuslibet  benedictionis  seu  consecrationis  impendat. — Concil. 
Lateran.  can.  18.  In  1227,  the  Council  of  Treves  repeated  the  prohibition, 
but  only  applied  it  to  the  red-hot  iron  ordeal.  "  Item,  nullus  sacerdos  can- 
dens  ferruni  benedicat." — Concil.  Trevirens  ann.  1227,  cap.  ix. 


ORADU  A  I     !.  I  M  I  TAT  I  ON.  273 

Germany  the  red-hoi  hron  m  i  means  of  condemning  his 
unfortnnate  victims  by  wholesale,  and  the  chronicler  relates 
that,  whether  innocent  ox  guilty,  few  escaped  the  test.1  The 
canon  of  Lateran,  however,  was  actively  followed  up  by  the 
Papal  legates,  &nd  the  effect  was  soon  discernible. 

Perhaps  the  earliest  instance  of  secular  legislation  di- 
rected against  the  ordeal,  except  some  charters  granted  to 
communes,  is  an  edict  of  Philip  Augustus  in  1200,  bestow- 
ing certain  privileges  on  the  scholars  of  the  University 
ol*  Paris,  by  which  he  ordered  that  a  citizen  accused  of 
assaulting  a  student  shall  not  be  allowed  to  defend  himself 
either  by  the  duel  or  the  water-ordeal.9  In  England,  a 
rescript  of  Henry  III.,  dated  January  27,  1219,  directs  the 
judges  then  starting  on  their  circuits  to  employ  other  modes 
of  proof — "seeing  that  the  judgment  of  fire  and  water  is 
forbidden  by  the  Church  of  Rome."3  A  few  charters  and 
confirmations,  dated  some  years  subsequently,  allude  to  the 
privilege  of  administering  it ;  but  Matthew  of  Westminster, 
when  enumerating,  under  date  of  1250,  the  remarkable 
events  of  the  half  century,  specifies  its  abrogation  as  one 
of  the  occurrences  to  be  noted,4  and  we  may  conclude  that 
thenceforth  it  was  practically  abandoned  throughout  the 
kingdom.  This  is  confirmed  by  the  fact  that  Bracton,  writ- 
ing about  the  same  time,  refers  only  to  the  wager  of  battle 
as  a  legal  procedure,  and,  when  alluding  to  other  forms, 
speaks  of  them  as  things  of  the  past.   About  the  same  time, 

1  Nam  in  civitate  Argentinensi  hoc  anno  non  minus  quam  octoginta  numero 
comprehensi  sunt,  quos  memoratus  frater  judicio  ferri  candentis  examinare 
contra  prohibitionem  canonis  publico  consuevit ;  et  in  quos  ferrum  adussit, 
mox  ignibus  tradidit.  Unde,  paucissimis  exceptis,  omnes  qui  coram  eo  semel 
accusati  fuissent,  et  per  judicium  ferri  candentis  examinati,  videbantur  ilium 
plures  damnavisse  innocentes,  dum  candens  ferrum  a  peccatis  nullum  repe- 
riret  alienum. — Trithem.  Chron.  Hirsaug.  ann.  1215. 

-  Fontanon,  IV.  942. 

3  Spelman,  Gloss,  s.  v.  Judicium. 

*  Prohibitum  est  judicium  quod  fieri  consuevit  per  ignem  et  per  aquam. — 
Mat.  Westmon.  ann.  1250. 


274  THE     ORDEAL. 

Alexander  II.  of  Scotland  forbade  its  use  in  cases  of  theft.1 
Nearly  contemporary  was  the  Neapolitan  Code,  promul- 
gated in  1231,  by  authority  of  the  Emperor  Frederic  II.,  in 
which  he  not  only  prohibits  the  use  of  the  ordeal  in  all 
cases,  but  ridicules,  in  a  very  curious  passage,  the  folly  of 
those  who  could  place  confidence  in  it.3  We  may  conclude, 
however,  that  this  was  not  effectual  in  eradicating  it,  for, 
fifty  years  later,  Charles  of  Anjou  found  it  necessary  to 
repeat  the  injunction.3  About  the  same  time,  Waldemar  II. 
of  Denmark,  Hakonsen  of  Iceland  and  Norway,  and  soon 
afterwards  Birger  Jarl  of  Sweden,  followed  the  example.4 
In  Frisia  we  learn  that,  in  1219,  the  inhabitants  still  refused 
to  obey  the  papal  mandates,  and  insisted  on  retaining  the 
red-hot  iron  ;5  though  a  century  later  the  Laws  of  Upstal- 
lesboom  show  that  ordeals  of  all  kinds  had  fallen  into 
desuetude.6     In  France,  we  find  no  formal  abrogation  pro- 

1  De  cetero  non  fiat  judicium  per  aquam  vel  ferrum,  ut  consuetum  fuit 
antiquis  temporibus. — Statut.  Alex.  II.  cap.  7  §  3. 

3  Leges  quas  a  quibusdam  simplicibus  sunt  dictae  paribiles  ....  praesentis 
nostri  nominis  sanctionis  edicto  in  perpetuum  inhibentes,  omnibus  regni 
nostri  judicibus,  ut  nullus  ipsas  leges  paribiles,  qua)  absconsae  a  veritate 

deberent  potius  nuncupari,  aliquibus  fidelibus  nostris  indicet Eorum 

etinim  sensum  non  tarn  corrigendum  duximus  quam  ridendum,  qui  naturalem 
candentis  ferri  calorem  tepescere,  imo  (quod  est  stultius)  frigescere,  nulla 
justa  causa  superveniente,  confidunt;  aut  qui  reum  criminis  constitutum,  ob 
conscientiam  laesani  tantum  asserunt  ab  aquas  frigidas  elemento  non  recipi, 
quern  submergi  potius  aeris  competentis  retentio  non  permittit. — Constit. 
Sicular.  Lib.  n.  Tit.  31.  This  last  clause  would  seem  to  allude  to  some 
artifice  of  the  operators  by  which  the  accused  was  prevented  from  sinking  in 
the  cold-water  ordeal,  when  a  conviction  was  desired. 

This  common  sense  view  of  the  miracJes  so  generally  believed  is  the  more 
remarkable  as  coming  from  Frederic,  who,  a  few  years  previously,  was  fero- 
ciously vindicating  with  fire  and  sword  the  sanctity  of  the  Holy  Seamless 
Coat  against  the  aspersions  of  unbelieving  heretics.  See  his  Constitutions  of 
1221  in  Goldastus,  Const.  Imp.  I.  293-4. 

3  Statut.  MSS.  Caroli  I.  cap.  xxii.     (Du  Cange,  s.  v.  Lex  Parib.) 

4  Konigswarter,  op.  cit.  p.  176. 

5  Emo,  the  contemporary  Abbot  of  Wittewerum,  instances  this  disobe- 
dience as  one  of  the  causes  of  the  terrible  inundation  of  1219.  Emon. 
Chron.  ann.  1219  (Matthaei  Analect.  III.  72). 

u  Issued  in  1323. 


FRANCE  —  (IKK  MA  NY.  275 

mulgated;  but  the  contempt  into  which  the  system  bad 
fallen  is  abundantly  proved  by  the  (act  thai  in  tin*  ordi- 
nances and  books  of  practice  issued  during  the  Latter  half 
of  the  century,  such  as  the  Et abatements  of  St.  Louis,  tin 
Conseil  of  Pierre  <U>  Fontaines,  the  Coutumcs  du  Bcaur<>i*i* 
of  Beaumanofr,  and  the  Livres  de  Jostice  et  de  /'/<■/.  its 
existence  is  not  recognized  even  by  a  prohibitory  allusion, 
the  judicial  duel  thenceforward  monopolizing  the  province 
of  irregular  evidence.  Indeed,  a  Latin  version  of  the 
Coutumier  of  Normandy,  dating  about  the  middle  of  the 
thirteenth  century,  or  a  little  earlier,  speaks  of  it  as  a 
mode  of  proof  formerly  employed  in  cases  where  one  of 
the  parties  was  a  woman  who  could  find  no  champion  to 
uridergo  the  wager  of  battle,  adding  that  it  had  been  for- 
bidden by  the  church,  and  that  such  cases  were  then 
determined  by  inquests.1 

Germany  was  more  tardy  in  yielding  to  the  mandates 
of  the  church.  The  Teutonic  knights  who  wielded  their 
proselj'ting  swords  in  the  Marches  of  Prussia  introduced 
the  ordeal  among  other  Christian  observances,  and  in  1225 
Ilonorius  III.,  at  the  prayer  of  the  Livonian  converts, 
promulgated  a  decree  by  which  he  strictly  interdicted  its 
use  for  the  future.3  Even  in  12 79  we  find  the  Council  of 
Buda,  and  in  1298  that  of  Wurtzburg,  obliged  to  repeat 
the  prohibition  uttered  by  that  of  Lateran.3  The  independ- 
ent spirit  of  the  Empire,  however,  still  refused  obedience 
to  the  commands  of  the  Church,  and  even  in  the  four- 

1  Olim  mulieres  criminalibus  causis  insecute,  cum  non  haberent  qui  eas 

defenderent,   se  purgabant  per  aquam Et  quoniam   hujusraodi  ab 

ecclesia  catholica  sunt  abscissa,  inquisicione  locorum  eorum  frequenter 
utimur  et  in  multris. — Cod.  Leg.  Norman.  P.  n.  c.  x.  §§  2,  3.  (Ludewig, 
Reliq.  Msctorum.  VII.  292.)  It  is  a  little  singular  that  the  same  phrase  is 
retained  in  the  authentic  copy  of  the  Coutumier,  in  force  until  the  close  of 
the  sixteenth  century. — Anc.  Cout.  de  Normandie,  c.  77  (Bourdot  de  Riche- 
bourg.  IV.  32). 

3  Can.  Dilecti,  Extra,  De  Purgatione  Vulgari 

3  Batthyani,  Legg.  Eccles.  Hung.  T.  II.  p.  43G.— Hartzhciin,  IV.  27. 


276  THE    ORDEAL. 

tecnth  century  the  ancestral  customs  were  preserved  in  full 
vigor  as  regular  modes  of  procedure  in  a  manual  of  legal 
practice  still  extant.  An  accusation  of  homicide  could  be 
disproved  only  by  the  judicial  combat,  while  in  other  felo- 
nies a  man  of  bad  repute  had  no  other  means  of  escape 
than  by  undergoing  the  ordeal  of  hot  water  or  iron.1 

In  Aragon,  Don  Jayme  I.,  in  1247,  prohibited  it  in  the 
laws  of  Huesca,9  and  in  1248  in  his  revision  of  the  consti- 
tution of  Majorca.3  In  Castile  and  Leon,  the  Council  of 
Palencia  in  1322  was  obliged  to  threaten  with  excommuni- 
cation all  concerned  in  administering  the  ordeal  of  fire  or 
of  water,4  which  proves  how  little  had  been  accomplished 
by  the  enlightened  code  of  the  "Partidas,"  issued  about 
12G0  by  Alfonso  the  Wise.  In  this  the  burden  of  proof  is 
expressly  thrown  upon  the  complainant,  and  no  negative 
proofs  are  demanded  of  the  defendant,  who  is  specially 
exempted  from  the  necessity  of  producing  them  ;5  and 
although,  in  obedience  to  the  chivalrous  spirit  of  the  age, 
the  battle  ordeal  is  not  abolished,  yet  it  is  so  limited  as  to 
be  practically  a  dead  letter,  while  no  other  form  of  negative 
proof  is  even  alluded  to. 

Although  the  ordeal  was  thus  removed  from  the  admitted 
jurisprudence  of  Europe,  the  principles  of  faith  which  had 
given  it  vitality  were  too  deeply  implanted  in  the  popular 

1  Hand  secus  purgare  se  possit  imputatorum  criminum  ergo  quam,  ut  supra 
dictum,  ferro  candente  tacto. — Richtstich  Landrecht,  cap.  lii.  The  same 
provisions  are  to  be  found  in  a  French  version  of  the  Speculum  Suevicum, 
probably  made  towards  the  close  of  the  fourteenth  century  for  the  use  of  the 
western  provinces  of  the  Empire. — Miroir  de  Souabe,  P.  i.  c.  xlviii.  (Ed. 
Matile,  Neufchatel,  1843). 

-  Du  Cange,  s.  v.  Ferrum  candens. 

3  Pro  aliquo  crimine  vel  delicto,  vel  demanda,  non  facietis  nobiscum  vel 
cum  bajulo  aut  curia  civitatis,  nee  inter  vos  ipsos,  batalam  per  ferrum  cali- 
dum,  per  hominem  nee  per  aquam,  vel  aliam  ullam  rem.  (Du  Cange,  s.  v. 
Batalia.) 

4  Du  Cange,  s.  v.  Ferrum  candens. 

6  Non  es  tenuda  la  parte  de  probar  lo  que  niega  porque  non  lo  podrie 
facer. — Las  Siete  Partidas,  P.  in    Tit.  xiv.  1.  1. 


PERSISTENCE    OF    POPULAR    BELIEF.  2  T1 

mind  to  be  tit  once  eradicated,  and  accordingly,  as  we  have 
seen  above,  instances  of  its  employment  continued  occa- 
sionally for  several  centuries  to  disgrace  the  tribunals.  The 
onlcal  of  battle,  indeed,  as  may  be  seen  in  the  preceding 
essay,  w&a  aol  Legally  abrogated  until  long  afterward; 
and  the  longevity  of  the  popular  belief,  upon  which  the 
whole  system  was  founded,  may  be  gathered  from  a  remark 
of  Sir  William  Staundford,  a  learned  judge  and  respectable 
legal  authority,  who,  in  155  T,  expresses  the  same  confident 
expectation  of  Divine  interference  which  had  animated  Hinc- 
mar  or  Poppo.  After  stating  that  in  an  accusation  of 
felony,  unsupported  by  evidence,  the  defendant  had  a  right 
to  wager  his  battle,  he  proceeds  :  "  Because  in  that  the 
appellant  demands  judgment  of  death  against  the  appellee, 
it  is  more  reasonable  that  he  should  hazard  his  life  with 
the  defendant  for  the  trial  of  it,  than  to  put  it  on  the 
country  ....  and  to  leave  it  to  God,  to  whom  all  things 
are  open,  to  give  the  verdict  in  such  case,  scilicet,  by 
attributing  the  victory  or  vanquishment  to  the  one  party 
or  the  other,  as  it  pleaseth  Him."1 

The  papal  authority,  however,  was  not  the  only  element 
at  work  to  abolish  this  superstition.  The  revival  of  the 
Roman  law  in  the  twelfth  and  thirteenth  centuries  did 
much  to  influence  the  secular  tribunals  against  all  ordeals, 
as  has  been  seen  in  the  case  of  the  wager  of  battle.  So, 
also,  a  powerful  assistant  must  be  recognized  in  the  rise 
of  the  communes,  whose  sturdy  common  sense  not  infre- 
quently rejected  its  absurdity.  Accordingly,  we  find  that 
it  is  rarely  comprehended  in  their  charters,  as  it  is  in 
those  granted  to  abbeys  and  monasteries,  while  occasion- 
ally a  special  exemption  is  alluded  to  as  a  privilege.3    The 

1  Plees  del  Corone,  chap.  xv.  (quoted  in  1  Barnewall  &  Alderson,  433) . 
a  An  instance  of  this  occurs  as  early  as  1132,  in  a  charter  granted  by  King 
Roger  of  Naples  to  the  inhabitants  of  Bari :  "  Ferrum,  cacavum,  pugnaro, 
24 


2*78  THE    ORDEAL. 

influence  of  the  commercial  and  municipal  spirit,  fostered 
by  the  establishment  of  chartered  towns,  in  dissipating 
the  mists  of  error  and  prejudice,  is  farther  shown  by  the 
fact  that  the  early  codes  of  commercial  law  make  no 
reference  whatever  to  the  proof  by  ordeal,  though  some 
of  those  codes  were  drafted  at  a  period  when  it  was  a 
recognized  portion  of  ordinary  jurisprudence.  The  Roles 
d'Oleron,  the  laws  of  Wislry,  and  the  Consulat  de  la  Met 
endeavor  to  regulate  all  questions  by  the  reasonable  rules 
of  evidence,  and  offer  no  indication  that  the  judgment  of 
God  was  resorted  to  when  human  means  were  at  fault. 
Indeed,  King  Amauiy,  who  ascended  the  throne  of  Cyprus 
in  1194,  specifically  declares,  in  a  law  embodied  in  the 
Assises  de  Jerusalem,  that  maritime  causes  are  under  the 
jurisdiction  of  a  special  court,  instead  of  the  ordinary  civic 
tribunal,  in  order  to  avoid  the  battle  ordeal  permitted  by 
the  latter;1  from  which  we  may  safety  assume  that  the 
other  forms  of  ordeal  were  equally  ignored  by  the  maritime 
law  dispensers.  The  same  spirit  is  shown  in  a  treaty  of 
1228  between  Riga,  a  member  of  the  Ilanseatic  League,  and 
Mstislaf  Davidovitch,  Prince  of  Smolensko,  which  among 

aquam,  vobis  non  judieabit  vel  judicari  faciet."  (Muratori,  Antiq.  Ital. 
Dissert.  38.) 

So  also  in  the  Charter  of  Geertsbergh,  confirmed  by  Baldwin  of  Constanti- 
nople, Earl  of  Flanders,  in  1200. — "  Item  nemo  cogatur  inire  duellum,  vel 
subire  judicium  ignis  et  aquae,"  (Miraei  Diplom.  Belgic.  c.  lxvii.) — while,  at 
the  same  time,  no  doubt  those  who  desired  the  ordeal  were  not  debarred 
from  it,  as  is  shown  by  the  interpolation  in  another  MS.  of  the  words  "  nisi 
spontaneus"  (Le  Glay,  Revue  de  Miraeus,  p.  32).  It  is  a  little  singular, 
however,  to  find  in  the  Franc  de  Bruges  in  1190  the  whole  system  of  or- 
deals in  full  and  common  use.  Every  Saturday,  a  certain  time  was  set  npart 
for  the  courts  to  take  cognizance  of  them — "  Et  tempus  duellorum  et  banni- 
torum  a  scabinis  ibi  statutum  observabunt,  ita  ut  de  bannitis  primo,  postea 
de  duellis  tractandum  et  de  judiciis  aquas  et  ferri." — Keure  de  Bruges,  §  61. 
(Warnkbnig,  Hist,  de  le  Fland.  IV.  377.) 

1  Por  ce  que  en  la  cort  de  la  mer  na  point  de  bataille  por  preuve  ne  por 
demande  de  celuy  veage,  et  en  1  autre  cort  des  borgeis  deit  aveir  espreuves 
par  bataille. — Baisse  Court,  cap.  43. 


PERPETUATION    OF    SUPERSTITION.  2t9 

its  provisions  especially  exempted  the  Qermane  in  the  terri- 
tory of  the  hater  from  all  liability  to  the  ordeal  of  hot  iron 
and  of  battle.1 

Although  we  m:iy  hail  the  disappearance  of  the  ordeal  as 
marking  bo  era  in  human  progress,  yet  should  we  err  in 
deeming  it  either  the  effect  or  the  cause  of  a  change  in  the 
constitution  of  the  human  mind.  The  mysterious  attrac- 
tion of  the  unknown  and  undefined,  the  striving  for  the 
unattainable,  the  yearning  to  connect  our  mortal  nature 
with  some  supernal  power — all  these  mixed  motives  assisted 
in  maintaining  superstitions  similar  to  those  which  we  have 
thus  passed  in  review.  The  mere  external  manifestations 
were  swept  away,  but  the  potent  agencies  which  vivified 
them  remained,  not  perhaps  less  active  because  they  worked 
more  secretly.  Thus  generation  after  generation  of  follies, 
strangely  affiliated,  waits  on  the  successive  descendants  of 
man,  and  perpetuates  in  another  shape  the  superstition 
which  we  had  thought  eradicated.  In  its  most  vulgar  and 
abhorrent  form,  we  recognize  it  in  the  fearful  epidemic  of 
sorcery  and  witchcraft  which  afflicted  the  sixteenth  and  sev- 
enteenth centuries ;  sublimed  to  the  verge  of  heaven,  we  see 
it  reappear  in  the  seraphic  theories  of  Quietism ;  descend- 
ing again  towards  earth,  it  assumes  the  mad  vagaries  of 
the  Convulsionnaires.  In  a  different  guise,  it  leads  the 
refined  scepticism  of  the  eighteenth  century  to  a  belief  in 
the  supernatural  powers  of  the  divining-rod,  which  could 
not  only  trace  out  hidden  springs  and  deep-buried  mines,  but 
could  also  discover  crime,  and  follow  the  malefactor  through 
all  the  doublings  of  his  cunning  flight.9     Each  age  has  its 

1  Traite"  de  1228,  art.  3.  (Esneaux,  Histoire  de  Russie  II.  272.) 
Q  When,  in  1692,  Jacques  Aymar  attracted  public  attention  to  the  miracles 
of  the  divining-rod,  he  was  called  to  Lyons  to  assist  the  police  in  discover- 
ing the  perpetrators  of  a  mysterious  murder,  which  had  completely  baffled 
the  agents  of  justice.  Aided  by  his  rod,  he  traced  the  criminals,  by  land 
and  water,  from  Lyons  to  Beaucaire,  where  he  found  in  prison  a  man  whom 


280  THE    ORDEAL. 

own  sins  to  answer  for,  its  own  puerilities  to  bewail — hap- 
piest that  which  best  succeeds  in  hiding  them,  for  it  can 
scarce  do  more.  Here,  in  our  boasted  nineteenth  century, 
when  the  triumph  of  human  intelligence  over  the  forces  of 
nature,  stimulating  the  progress  of  material  prosperity  with 
the  press,  the  steam-engine,  and  the  telegraph,  has  deluded 
us  into  sacrificing  our  psychical  to  our  intellectual  being — 
even  here  the  duality  of  our  nature  reasserts  itself,  and  in 
the  obscene  blasphemy  of  Mormonism  and  in  the  fantastic 
mysteries  of  pseudo-spiritualism  we  see  a  protest  against 
the  despotism  of  mere  reason.  If  we  wonder  at  these  per- 
versions of  our  noblest  attributes,  we  must  remember  that 
the  intensity  of  the  reaction  measures  the  original  strain, 
and  in  the  dismal  insanities  of  the  day  we  thus  may  learn 
how  utterly  we  have  forgotten  the  Divine  warning,  "  Man 
shall  not  live  by  bread  alone I" 

Which  age  shall  cast  the  first  stone?  When  Cicero 
wondered  how  two  soothsayers  could  look  at  each  other 
without  laughing,  he  showed  that  the  grosser  forms  of 
superstition  were  not  universally  shared.  Such,  we  may 
be  assured,  has  been  the  case  at  every  period ;  and,  in  our 
own  day,  can  we,  who  proudly  .proclaim  our  disbelief  in  the 
follies  which  exist  around  us,  individually  assert  that  we 
have  not  contributed,  each  in  his  own  infinitesimal  degree, 
to  the  causes  which  have  produced  them  ? 

he  declared  to  be  a  participant,  and  who  finally  confessed  the  crime.  Ayraar 
was  at  length  proved  to  be  merely  a  clever  charlatan  ;  but  the  mania  to 
which  he  gave  rise  lasted  through  the  eighteenth  century,  and  nearly  at  its 
close  his  wonders  were  rivalled  by  a  brother  sharper,  Campetti. 


IV. 
TORTURE 


The  preceding  essays  have  traced  the  development  of 
sacramental  purgation  and  of  the  ordeal  as  resources  de- 
vised by  human  ingenuity  when  called  upon  to  decide  ques- 
tions too  intricate  for  the  impatient  intellect  of  a  rude  and 
semi-barbarous  age.  There  was  another  mode,  however,  of 
attaining  the  same  object,  which  has  received  the  sanction 
of  the  wisest  law-givers  during  the  greater  part  of  the 
world's  history,  and  our  survey  of  the  field  of  irregular 
testimony  would  be  incomplete  without  glancing  at  the 
subject  of  the  judicial  use  of  torture. 

In  the  early  stages  of  society,  when  force  reigns  supreme 
and  law  is  but  an  instrument  for  its  convenient  and  effective 
exercise,  the  judge  or  the  pleader  would  naturally  seek  to 
extort  from  the  reluctant  witness  a  statement  of  what  he 
might  desire  to  conceal,  or  from  the  presumed  criminal  a 
confession  of  his  guilt.  To  accomplish  this,  the  readiest 
means  would  seem  to  be  the  infliction  of  pain,  to  escape 
from  which  the  witness  would  sacrifice  his  friends,  and  the 
accused  would  submit  to  the  penalty  of  his  crime.  The 
means  of  administering  graduated  and  effectual  torment 
would  thus  be  sought  for,  and  the  rules  for  its  application 
would  in  time  be  developed  into  a  regular  system,  forming 
part  of  the  recognized  principles  of  jurisprudence. 

The  only  subject  of  surprise,  indeed,  is  that  torture  was 
not  more  generally  authorized  in  primitive  times.  To  the 
parent  stock  of  the  Aryan  family  of  races  it  would  appear 
♦  24* 


282  TORTURE. 

to  have  been  unknown:  at  least,  it  has  left  no  recorded 
trace  in  the  elaborate  provisions  of  the  Hindu  law  as  it 
has  existed  for  three  thousand  years.1  Among  the  Semitic 
nations,  too,  the  jurisprudence  of  Moses  is  free  from  any 
indication  that  such  expedients  were  regarded  as  legitimate 
among  the  Hebrews.  The  connection  between  the  latter 
and  the  Egyptians  would  appear  to  warrant  the  conclusion 
that  torture  was  equally  unknown  to  the  antique  civilization 
of  the  Pharaohs,  and  this  is  confirmed  by  the  description 
which  Diodorus  Siculus  gives  of  the  solemn  and  mysterious 
tribunals,  where  written  pleadings  alone  were  allowed,  lest 
the  judges  should  be  swayed  by  the  eloquence  of  the  human 
voice,  and  where  the  verdict  was  announced,  in  the  unbroken 
silence,  by  the  presiding  judge  touching  the  successful  suitor 
with  an  image  of  the  Goddess  of  Truth.3 

In  Greece,  we  find  the  use  of  torture  thoroughly  under- 
stood and  permanently  established.  The  oligarchical  and 
aristocratic  tendencies,  however,  which  were  so  strongly 
developed  in  the  Hellenic  commonwealths,  imposed  upon 

1  In  Book  viii.  of  the  Institutes  of  Manu  there  are  very  minute  directions 
as  to  evidence.  The  testimony  preferred  is  that  of  witnesses,  whose  com- 
parative credibility  is  very  carefully  discussed,  and  when  that  is  not  pro- 
curable, the  parties  are  ordered  to  be  sworn  or  to  be  submitted  to  the  ordeal. 
These  principles  have  been  transmitted  unchanged  to  the  present  day.  See 
the  Ayeen  Akbery,  Tit.  Beyhar,  Vol.  II.  p.  494,  and  Halhed's  Code  of 
Gentoo  Laws,  chap,  xviii. 

"  Diod.  Sicul.  i.  Ixxv. — Sir  Gardiner  Wilkinson  (Ancient  Egyptians,  Vol. 
II.)  figures  several  of  these  little  images. 

That  torture  was  a  customary  legal  procedure  in  Egypt  has  been  assumed  by 
some  writers  from  a  passage  in  iElian  to  the  effect  that  Egyptians  were  com- 
monly regarded  as  capable  of  dying  under  torture  in  preference  to  revealing 
the  truth — "iEgyptios  aiunt  patientissime  ferre  tormenta :  et  citius  mori 
hominem  ^Igyptium  in  quasstionibus  tortum  examinatumque  quam  veritatem 
prodere."  (Var.  Hist.  vn.  xviii.)  This  can  hardly,  however,  be  considered 
to  prove  anything.  In  the  time  of  iElian.  the  Egyptians  had  been  for  five 
centuries  under  Greek  or  Roman  rule,  and  had  probably  acquired  ample 
experience  of  torture.  There  were  doubtless,  .also,  numerous  Egyptian  slaves 
scattered  throughout  the  Empire,  where  they  must  have  had  sufficient  oppor- 
tunity to  earn  their  reputation  for  endurance. 


TN    QR1  10  r-  ->s-'5 

ii  i  limitation  characteristic  of  the  pride  and  self-respect  of 
the  governing  order.  As  a  general  rale,  no  freeman  could 
be  tortured.     Even  freedmen  enjoyed  an  exemption^  and  it. 

was  reserved  for  the  unfortunate  class  of  slaves,  and  Coi 
strangers  who  formed  no  part  of  the  body  politic.  Yet 
there  were  exceptions,  as  among  the  Rhodians,  whose  laws 
authorized  the  torture  of  free  citizens;  and  In  other  states 
it  was  occasionally  resorted  to,  in  the  case  of  flagrant  po- 
litical  offences;  while  the  people,  acting  in  their  supreme 
and  irresponsible  authority,  could  at  any  time  decree  its 
application  to  anyone  irrespective  of  privilege.  Thus,  when 
Eipparchns  was  assassinated  by  Harmodius,  Aristogiton 
wafi  tortured  to  obtain  a  revelation  of  the  plot,  and  several 
similar  proceedings  are  related  by  Valerius  Maximus  as 
occurring  among  the  Hellenic  nations.1  The  inhuman  tor- 
ments inflicted  on  Philotas,  son  of  Parmenio,  when  accused 
of  conspiracy  against  Alexander,  show  how  little  real  pro- 
tection existed  when  the  safety  of  a  despot  was  in  question : 
and  illustrations  of  torture  decreed  by  the  people  are  to  be 
seen  in  the  proceedings  relative  to  the  mutilation  of  the 
statues  of  Hermes,  and  in  the  proposition,  on  the  trial  of 
Phocion,  to  put  him,  the  most  eminent  citizen  of  Athens, 
to  the  rack. 

In  a  population  consisting  largely  of  slaves,  mostly  of 
the  same  race  as  their  masters,  often  men  of  education  and 
intelligence  and  employed  in  positions  of  confidence,  legal 
proceedings  must  frequently  have  turned  upon  their  evi- 
dence, in  both  civil  and  criminal  cases.  Their  evidence, 
however,  was  inadmissible,  except  when  given  under  torture, 
and  then,  by  a  singular  confusion  of  logic,  it  was  estimated 
as  the  most  convincing  kind  of  testimony.  Consequently, 
the  torturing  of  slaves  formed  an  important  portion  of  the 
administration  of  Athenian  justice.  Either  party  to  a  suit 
might  offer  his  slaves  to  the  torturer  or  demand  those  of 

1  Lib.  in.  cap.  iii. 


284  TORTURE. 

his  opponent,  and  a  refusal  to  produce  them  was  regarded 
as  seriously  compromising.  When  both  parties  tendered 
their  slaves,  the  judge  decided  which  should  be  received. 
Even  without  bringing  a  suit  into  court,  disputants  could 
have  their  slaves  tortured  for  evidence  with  which  to  effect 
an  amicable  settlement. 

In  formal  litigation,  the  defeated  suitor  paid  whatever 
damages  his  adversary's  slaves  might  have  undergone  at 
the  hands  of  the  professional  torturer,  who,  as  an  expert 
in  such  matters,  was  empowered  to  assess  the  amount  of 
depreciation  they  had  sustained.  It  affords  a  curious  com- 
mentary on  the  high  estimation  in  which  such  testimony 
was  held  to  observe  that,  when  a  man's  slaves  had  testified 
against  him  on  the  rack,  they  were  not  protected  from 
his  subsequent  vengeance,  which  might  be  exercised  upon 
them  without  restriction. 

As  the  laws  of  Greece  passed  away,  leaving  compara- 
tively few  traces  on  the  institutions  of  other  races,  it  will 
suffice  to  add  that  the  principal  modes  in  which  torture 
was  sanctioned  by  them  were  the  wheel  (Vpd^oj),  the  ladder 
or  rack  (xM'/tai),  the  comb  with  sharp  teeth  (*x>a$oj),  the  low 
vault  (xv$m)  in  which  the  unfortunate  witness  was  thrust 
and  bent  double,  the  burning  tiles  (nxii^ot),  the  heavy  hog- 
skin  whip  (i^T-pi^is),  and  the  injection  of  vinegar  into  the 
nostrils.1 

In  the  earlier  days  of  Rome,  the  general  principles  gov- 
erning the  administration  of  torture  were  the  same  as  in 
Greece.    Under  the  Republic,  the  free  citizen  was  not  liable 

1  Aristophanes  (Ra?ice,  617)  recapitulates  most  of  the  processes  in  vogue. 
Aiachos.      x.x)  ttoJc  (ldLTa.n^ut\> 
Xanthias.  tra-vr*.  rpowcv,  h  x,xi/u*x.i 

£»?&$,  x.fiy.a.TdL'-,,  vT-rpfyiSi  /uxcrTtySbv,  S'ycev, 

The  best  summary  I  have  met  with  of  the  Athenian  laws  of  torture  is  in 
Eschbach's  "Introduction  a  l'Etude  du  Droit,"  §  268. 


in  aoM  i. 

1o  it.  and  the  evidence  of  slnves  was  not.  received  without 

it.    With  the  progress  of  despotism,  however,  the  safe- 
guards Which  surrounded   the   freeman  were  broken  down, 

and  autocratic  Emperors  had  little  seruple  in  sending  their 

subjects  to  the  rack. 

Kven  :is  early  as  the  second  Triumvirate,  a  proetor  named 
Q.  (Jallius,  in  saluting  Octavius,  chanced  to  have  a  double 
tablet  under  his  toga.  To  the  timid  imagination  of  the 
future  Emperor,  the  angles  of  the  tablet,  outlined  under 
the  garment,  presented  the  semblance  of  a  sword,  and  he 
fancied  Gallius  to  be  the  instrument  of  a  conspiracy  against 
his  life.  Dissembling  his  fears  for  the  moment,  he  soon 
caused  the  unlucky  prnetor  to  be  seized  while  presiding  at 
his  own  tribunal,  and  after  torturing  him  like  a  slave  with- 
out extracting  a  confession,  put  him  to  death.1 

The  incident  was  ominous  of  the  future, .when  all  the 
powers  of  the  state  were  concentrated  in  the  august  person 
of  the  Emperor.  He  was  the  representative  and  embodi- 
ment of  the  limitless  sovereignty  of  the  people,  whose 
irresponsible  authority  was  transferred  to  him.  The  rules 
and  formularies,  however,  which  had  regulated  the  exer- 
cise of  power,  so  long  as  it  belonged  to  the  people,  were 
feeble  barriers  to  the  passions  and  fears  of  Coesarism. 
Accordingly,  a  principle  soon  became  engrafted  in  Roman 
jurisprudence  that,  in  all  cases  of  "crimen  majestatis," 
or  high  treason,  the  free  citizen  could  be  tortured.  In 
striking  at  the  ruler,  he  had  forfeited  all  rights,  and  the 
safety  of  the  state,  as  embodied  in  the  Emperor,  was  to  be 
preserved  at  every  sacrifice. 

The  Emperors  were  not  long  in  discovering  and  exercising 
their  power.  When  the  plot  of  Sejanus  was  discovered, 
the  historian  relates  that  Tiberius  abandoned  himself  so 
entirely  to  the  task  of  examining  by  torture  the  suspected 

1  Servilem  in  modum  earn  torsit ;  ac  fatentem  nihil,  jussit  occidi. — Sueton. 
August,  xxii. 


286  TORTURE. 

accomplices  of  the  conspiracy,  that  when  an  old  Rhodian 
friend,  who  had  come  to  visit  him  on  a  special  invitation, 
was  announced  to  him,  the  preoccupied  tyrant  absently 
ordered  him  to  be  placed  on  the  rack,  and  on  discovering 
the  blunder  had  him  quietly  put  to  death,  to  silence  all 
complaints.  The  shuddering  inhabitants  pointed  out  a 
spot  at  Capri  where  he  indulged  in  these  terrible  pursuits, 
and  where  the  miserable  victims  of  his  wrath  were  cast  into 
the  sea  before  his  eyes,  after  having  exhausted  his  ingenuity 
in  exquisite  torments.1  When  the  master  of  the  world 
took  this  fearful  delight  in  human  agony,  it  may  readily 
be  imagined  that  law  and  custom  offered  little  protection 
to  the  defenceless  subject,  and  Tiberius  was  not  the  only 
one  who  relished  these  inhuman  pleasures.  The  half-insane 
Caligula  found  that  the  torture  of  criminals  by  the  side  of 
his  dinner-table  lent  a  keener  zest  to  his  revels,  and  even 
the  timid  and  beastly  Claudius  made  it  a  point  to  be 
present  on  such  occasions.3 

Under  the  stimulus  of  such  hideous  appetites,  capricious 
and  irresponsible  cruelty  was  able  to  give  a  wide  extension 
to  the  law  of  treason.  If  victims  were  wanted  to  gratify 
the  whims  of  the  monarch  or  the  hate  of  his  creatures,  it 
was  easy  to  find  an  offender  or  to  make  a  crime.  Under 
Tiberius,  a  citizen  removed  the  head  from  a  statue  of  Au- 
gustus, intending  to  replace  it  with  another.  Interrogated 
before  the  Senate,  he  prevaricated,  and  was  promptly  put 
to  the  torture.  Encouraged  by  this,  the  most  fanciful  in- 
terpretation was  given  to  violations  of  the  respect  assumed 
to  be  due  to  the  late  Emperor.    To  undress  one's  self  or  to 

1  Neque  tormentis  neque  supplicio  cuiquam  pepercit :  soli  huic  cognitioni 
adeo  per  totos  dies  deditus  et  intentus,  ut  Rhodiensem  hospitem  quern  fami- 
liaribus  litteris  Romam  evocarat,  advenisse  sibi  nuntiatum,  torqueri  sine 
mora  jusserit,  quasi  aliquis  ex  necessariis  qusestioni  adesset:  deinde,  errore 
detecto,  et  occidi,  ne  divulgaret  injuriam.  Carnificinae  ejus  ostenditur  locus 
Capreis,  unde  damnatos,  post  longa  et  exquisita  tormenta,  praocipitare  coram 
se  in  mare  jubebat  — Sueton.  Tiberius,  c.  lxii. 

2  Ibid.  Calig.  xxxii. — Claud,  xxxiv. 


IN    ROM  1 .  287 

beat  a  slave  near  hid  image;  to  carry  into  a  cabim-f  etfoi*ance 
or  a  house  of  ill  fame  a  coin  or  n  ring  impressed  with  liis 
sacred  features;  to  criticize  any  act  or  word  of  his  became 
a  treasonable  offence;  and  finally  an  unlucky  wight  was 

actually  pul  to  death  for  allowing  the  slaves  on  his  farm  to 

pay  him  honors  on  the  anniversary  which  had  been  sacred 

to  Augustus.1 

So,  when  it  suited  the  waning  strength  of  paganism  to 
wreak  its  vengeance  for  anticipated  defeat  upon  the  rising 
energy  of  Christianity,  it  was  easy  to  include  the  new  reli- 
gion in  the  convenient  charge  of  treason,  and  to  expose  its 
votaries  to  all  the  horrors  of  ingenious  cruelty.  If  Nero 
desired  to  divert  from  himself  the  odium  of  the  conflagra- 
tion of  Rome,  he  could  turn  upon  the  Christians,  and  by 
well  directed  tortures  obtain  confessions  involving  the 
whole  sect,  thus  giving  to  the  populace  the  diversion  of  a 
persecution  on  a  scale  until  then  unknown,  besides  provid- 
ing for  himself  the  new  sensation  of  the  human  torches 
whose  frightful  agonies  illuminated  his  unearthly  orgies.2 
Diocletian  even  formally  promulgated  in  an  edict  the  rule 
that  all  professors  of  the  hated  religion  should  be  deprived 
of  the  privileges  of  birth  and  station,  and  be  subject  to  the 
application  of  torture.3    The  indiscriminate  cruelty  to  which 

1  Stature  quidam  Augusti  caput  demserat  ut  alterius  imponeret.  Acta  res 
in  Senatu.  Et  quia  ambigebatur,  per  tormenta  quresita  est.  Damnato  reo, 
paullatira  boc  genus  calumnire  eo  processit,  ut  hrec  quoque  capitalia  essent : 
circa  Augusti  simulacrum  servum  cecidisse,  vestimenta  mutasse :  nummo 
vel  annulo  effigiem  impressam,  latrinre  vel  lupanari  intulisse  ;  dictum  ullum 
factumve  ejus  existimatione  aliqua  lresisse.  Periit  denique  et  is  qui  honores 
in  colonia  sua  eodem  die  decerni  sibi  passus  est  quo  decreti  et  Augusto  olim 
erant. — Sueton.  Tiber.  Iviii. 

-  Tacit.  Annal.  xv.  xliv.  Ergo  abolendo  rumori  Nero  subdidit  reos,  et 
quresitissimis  poenis  adfecit  quos  per  flagitia  invisos,  vulgus  Christian os  appel- 

labat Igitur,  primo  conrepti  qui  fatebantur,  deinde  indicio  eorum, 

multitudo  ingens,  haud  "perinde  in  crimine  incendii,  quam  odio  humani 
generis  convicti  sunt. 

3  Postridie  propositum  est  edictum  quo  cavebatur  ut  religionis  illius 
homines  carerent  omni   honore  ac  dignitate,  tormentis  subject!  essent  ex 


288  TORTURE. 

the  Christians  were  thus  exposed  without  defence,  at  the 
hands  of  those  inflamed  against  them  by  all  evil  passions, 
may,  perhaps,  have  been  exaggerated  by  the  ecclesiastical 
historians,  but  that  frightful  excesses  were  perpetrated 
under  sanction  of  law  cannot  be  doubted  by  any  one  who 
has  traced,  even  in  comparatively  recent  times  and  among 
Christian  nations,  the  progress  >of  political  and  religious 
persecution.1 

The  torture  of  freemen  accused  of  crimes  against  the 
State  or  the  sacred  person  of  the  emperor  thus  became  an 
admitted  principle  of  Roman  law.  In  his  account  of  the 
conspiracy  of  Piso,  under  Nero,  Tacitus  alludes  to  it  as  a 
matter  of  course,  and  in  describing  the  unexampled  endu- 
rance of  Epicharis,  a  freedwoman,  who  underwent  the  most 
fearful  torments  without  compromising  those  who  possessed 
little  claim  upon  her  forbearance,  the  annalist  indignantly 
compares  her  fortitude  with  the  cowardice  of  noble  Romans, 
who  betrayed  their  nearest  relatives  and  dearest  friends  at 
the  mere  sight  of  the  torture  chamber.3 

Un,der  these  limits,  the  freeman's  privilege  of  exemption 
was  carefully  guarded,  at  least  in  theory.  A  slave  while 
claiming  freedom,  or  a  man  claimed  as  a  slave,  could  not  be 
exposed  to  torture  ;3  and  even  if  a  slave,  when  about  to  be 

quocumque  ordine  aut  gradu  venirent,  adversus  eos  omnis  actio  caleret,  etc. 
— Lactant.  de  Mortib.  Persecut.  cap.  xiii. 

1  Tormentorum  genera  inaudita  excogitabantur.  (Ibid.  cap.  xv.) — When 
the  Christians  were  accused  of  an  attempt  to  burn  the  imperial  palace,  Dio- 
cletian "  ira  inflammatus,  excarnificari  omnes  suos  protinus  pra3cipit.  Sede- 
bat  ipse  atque  innocentes  igne  torrebat."  (Ibid.  cap.  xiv.) — Lactantius,  or 
whoever  was  the  real  author  of  the  tract,  addresses  the  priest  Donatus  to 
whom  it  is  inscribed:  '  'Novies  etiam  tormentis  cruciatibusque  variis  subjectus, 

novies  adversarium   gloriosa  confessione  vicisti Nihil   adversus   te 

verbera,  nihil  ungulae,  nihil  ignis,  nihil  ferrum,  nihil  varia  tormentorum 
genera  valuerunt."  (Ibid.  cap.  xvi.)  Ample  details  may  be  found  in 
Eusebius,  Hist.  Eccles.  Lib.  v.  c.  I,  vi.  39,  41,  vin.  passim,  Lib.  Martyrum  ; 
and  in  Cyprian,  Epist.  x.  (Ed.  Oxon.  1682). 

3  Tacit.  Annal.  xv.  lvi.,  Ivii. 

*  In  causis  quoque  liberalibus,  non  oportet  per  eorum  tormenta,  de  quorum 
statu  quaeritur,  veritatem  requiri. — L.  10  §  6  Dig.  xlviii.  xviii. 


in  romi:.  289 

tortured,  endeavored  t<>  escape  by  asserting  his  freedom,  Li 

w:is  necessary  to  prove  hia  servile  condition  before  |>r<>- 
oeeding  with  the  legal  torments.1  In  practice,  however, 
these  privileged  were  continually  infringed,  and  numerous 
edicts  of  tlui  emperors  were  directed  to  repressing  the 
abuses  which  constantly  occurred.  Thus  we  find  Diocle- 
tian  forbidding  the  application  of  torture  to  soldiers  or 
their  children  under  accusation,  unless  they  had  been  dis- 
missed the  service  ignominiously.8  The  same  emperor  pub- 
lished anew  a  rescript  of  Marcus  Aurelius  declaring  the 
exemption  of  patricians  and  of  the  higher  imperial  officers, 
with  their  legitimate  descendants  to  the  fourth  generation;1 
and  also  a  dictum  of  Ulpian  asserting  the  same  privilege 
in  favor  of  decurions,  or  local  town  councillors,  and  their 
children.4  In  316,  Valentinian  was  obliged  to  renew  the 
declaration  that  decurions  were  only  liable  in  cases  of 
majrs/nh's,  and,  in  399,  Arcadius  and  Honorius  found  it 
necessary  to  explicit^  declare  that  the  privilege  was  per- 
sonal and  not  official,  and  that  it  remained  to  them  after 
laying  down  the  decurionate.5  Theodosius  the  Great,  in 
385,  especially  directed  that  priests  should  not  be  subjected 
to  torture  in  giving  testimony,6  the  significance  of  which  is 
shown  by  the  fact  that  no  slave  could  be  admitted  into  holy 
orders. 

The  necessity  of  this  constant  renewal  of  the  law  is  indi- 
cated by  a  rescript  of  Valentinian,  in  369,  which  shows  that 
freemen  were  not  infrequently  tortured  in  contravention  of 
law;  but  that  torture  could  legally  be  indiscriminately 
inflicted  by  any  tribunal  in  cases  of  treason,  and  that  in 

1  L.  12  Dig.  xLViit.  xviii.  (Ulpian.) 

-  Const.  8  Cod.  ix.  xli.  (Dioclet.  et  Maxim.) 

3  Const.  11  Cod.  ix.  xli. 

4  Ibid.  §  1. 

s  Const.  16  Cod.  ix.  xli. 

6  Presbyteri  citra  injuriain  qucestionis  testimonium  dicant  — Const.  8  Cod. 
I.  3. 

25 


290  TORTURE. 

other  accusations  it  could  be  authorized  by  the  order  of  the 
emperor.1  This  power  was  early  assumed  and  frequently 
exercised.  Thus  Domitian  tortured  a  man  of  praetorian 
rank  on  a  doubtful  charge  of  intrigue  with  a  vestal  virgin,3 
and  various  laws  were  promulgated  by  several  emperors 
directing  the  employment  of  torture  irrespective  of  rank,  in 
some  classes  of  accusations.  Thus,  in  211,  Caracalla  author- 
ized it  in  cases  of  suspected  poisoning  by  women.3  Con- 
stantine  decreed  that  unnatural  lusts  should  be  punished 
by  the  severest  torments,  without  regard  to  the  station 
of  the  offender.4  Constantius  persecuted  in  like  manner 
soothsayers,  sorcerers,  magicians,  diviners,  and  augurs, 
who  were  to  be  tortured  for  confession,  and  then  to  be  put 
to  death  with  every  refinement  of  suffering.5  So,  Justinian, 
under  certain  circumstances,  ordered  torture  to  be  used  on 
parties  accused  of  adultery.6  The  power  thus  assumed  by 
the  monarch  could  evidently  only  be  limited  by  his  discre- 
tion in  its  exercise. 

One  important  safeguard,  however,  existed,  which,  if 
properly  maintained,  must  have  greatly  lessened  the  fre- 
quency of  torture  as  applied  to  freemen.  In  bringing  an 
accusation,  the  accuser  was  obliged  to  inscribe  himself 
formally,  and  was  exposed  to  the  lex  talionis  in  case  he 
failed  to  prove  the  justice  of  the  charge.7  A  rescript  of 
Const antine,  in  314,  decrees  that  in  cases  of  majestatis,  as 
the  accused  was  liable  to  the  severity  of  torture  without 
limitation  of  rank,  so  the  accuser  and  his  informers  were  to 
be  tortured  when  they  were  unable  to  make  good  their 

1  Const.  4  Cod.  ix.  viii. 

3  Sueton.  Domit.  cap.  viii.  To  Domitian  the  historian  also  ascribes  the 
invention  of  a  new  and  infamously  indecent  kind  of  torture  (Ibid.  cap.  x.). 

3  Ipsa  quoque  mulier  torquebitur.  Neque  enim  a?gre  feret  si  torqueatur, 
quae  venenis  suis  viscera  hominis  extinxit. — Const.  3  Cod.  ix.  xli. 

4  Const.  31.  Cod.  ix.  ix. 

5  Const.  7  Cod.  ix.  viii. 

6  Novell,  cxvu.  cap.  xv.  §  1. 

7  Const.  17  Cod.  ix.  ii.— Const.  10  Cod.  ix.  xlvi, 


in    tOJ  391 

aecnsfltion.1  This  enlightened  Legislation  wbb  preserved 
by  J  ustinian,  and  must  have  greatly  cooled  the  ardor  of  the 
pftOk  Of  Calumniators  and  informers,  who,  from  the  days  of 

Sylla,  had  been  encouraged  and  petted  until  they  held  in 

their  liands  the  life  of  almost  every  citizen. 

All  these  laws  relate  to  the  extortion  of  confessions  from 
the  aeeused.  In  turning  to  the  treatment  of  witnesses,  we 
find  that  even  with  then  torture  was  not  confined  to  the 
servile  condition.  With  slaves,  it  was  not  simply  a  conse- 
quence of  slavery,  but  a  mode  of  confirming  and  rendering 
admissible  the  testimony  of  those  whose  character  was  not 
sufficiently  known  to  give  their  evidence  credibility  without 
it.  Thus  a  legist  under  Constantine  states  that  gladiators 
and  others  of  similar  occupation  cannot  be  allowed  to  hear 
witness  without  torture;9  and,  in  the  same  spirit,  a  novel 
of  Justinian,  in  539,  directs  that  the  rod  shall  be  used  to 
ext  ract  the  truth  from  unknown  persons  who  are  suspected 
of  bearing  false  witness  or  of  being  suborned.3 

It  may,  therefore,  readily  be  imagined  that  when  the  evi- 
dence of  slaves  was  required,  it  was  necessarily  accompa- 
nied by  the  application  of  torture.  Indeed,  Augustus 
declared  that  while  it  is  not  to  be  expressly  desired  in 
trilling  matters,  in  weighty  and  capital  cases  the  torture  of 
slaves  is  the  most  efficacious  mode  of  ascertaining  the 
truth.4  When  we  consider  the  position  occupied  by  slavery 
in  the  Roman  world,  the  immense  proportion  of  bondmen 
who  carried  on  all  manner  of  mechanical  and  industrial 

1  Const.  3  Cod.  ix.  viii. 

3  Si  ea  rei  conditio  sit  ut  harenarium  testem  vel  similem  personam  ad- 
mittere  cogimur,  sine  tormentis  testimonio  ejus  credendum  non  est. — L.  21, 
§  2  Dig.  xxii.  v. 

'  Novell,  xc.  cap.  i.  §  1. 

4  Quaostiones  neque  semper  in  omni  causa  et  persona  desiderari  debere 
arbitror :  et  cum  capitalia  et  atrociora  maleficia  non  aliter  explorari  et  inves- 
tigari  possunt,  quam  per  servorura  quaestiones,  efficacissimas  esse  ad  requi. 
rendam  veritatem  existiino  et  habendas  censeo. — L.  8  Dig.  xlviii.  xviii. 
(Paulus). 


292  TORTURE. 

occupations  for  the  benefit  of  their  owners,  and  who,  as 
scribes,  teachers,  stewards,  and  in  other  confidential  posi- 
tions, were  privy  to  almost  every  transaction  of  their 
masters,  we  can  readily  see  that  scarce  any  suit  could  be 
decided  without  involving  the  testimony  of  slaves,  and  thus 
requiring  the  application  of  torture.  It  was  not  even,  as 
among  most  modern  nations,  restricted  to  criminal  cases. 
Some  doubt,  indeed,  seems  at  one  time  to  have  existed  as 
to  its  propriety  in  civil  actions,  but  Antoninus  Pius  de- 
cided the  question  authoritatively  in  the  affirmative,  and 
this  became  a  settled  principle  of  Roman  jurisprudence, 
even  when  the  slaves  belonged  to  masters  who  were  not 
party  to  the  case  at  issue.1 

There  was  but  one  limitation  to  the  universal  liability  of 
slaves.  They  could  not  be  tortured  to  extract  testimony 
against  their  masters,  whether  in  civil  or  criminal  cases  f 
though,  if  a  slave  had  been  purchased  by  a  litigant  to  get 
his  testimony  out  of  court,  the  sale  was  pronounced  void, 
the  price  was  refunded,  and  the  slave  could  then  be  tor- 
tured.3 This  limitation  arose  from  a  careful  regard  for  the 
safety  of  the  master,  and  not  from  any  feeling  of  humanity 
towards  the  slave.  So  great  a  respect,  indeed,  was  paid  to 
the  relationship  between  the  master  and  his  slave  that  the 
principle  was  pushed  to  its  fullest  extent.  Thus  even  an 
emplo}' er,  who  was  not  the*  owner  of  a  slave,  was  protected 
against  the  testimony  of  the  latter.4  When  a  slave  was 
held  in  common  by  several  owners,  he  could  not  be  tor- 

1  L.  9  Dig.  xlviii.  xviii.  (Marcianus). — Licet  itaque  et  de  servis  alienis 
haberi  quaestionem,  si  ita  res  suadeat. 

3  L.  9  §  1  Dig.  xlviii.  xviii*. — L.  1  §  16  Dig.  xlviii.  xvii.  (Severus). — 
L.  1  §  18  Dig.  xlviii.  xviii.  (Ulpian.) 

3  Qui  servum  ideo  comparavit,  ne  in  se  torqueretur,  restituto  pretio,  poterit 
interrogari. — Pauli  Lib.  v.  Sentt.  Tit.  xvi.  §  7. — The  same  principle  is  in- 
volved in  a  rescript  of  the  Antonines. — L.  1  §  14  Dig.  xlviii.  xvii.  (Severus). 

4  Si  servus  bona  fide  mihi  serviat,  etiam  si  dominium  in  eo  non  habui, 
potest  dici,  torqueri  eum  in  caput  meum  non  debere. — L.  1  §  7  Dig.  xlviii. 
xvii.  The  expression  "in  caput  domini"  applies  as  well  to  civil  as  to  crimi- 
nal cases. — Pauli  Lib.  v.  Sentt.  Tit.  xvi.  §  5. 


IN    ROM  I.  298 

i  toed  in  opposition  to  any  of  them,  unless  one  were  mused 
of  murdering  his  partner.1  A  slave  could  not  be  tortured 
in  :i  prosecution  against  the  father  or  mother  of  the  owner, 
or  even  against  the  guardian,  except  in  cases  concerning 
the  guardianship;'  though  the  slave  of  a  husband  could  be 
tortured  against  the  wife.3  Even  the  tie  whieh  bound  the 
freedman  to  his  patron  was  sufficient  to  preserve  the  former 
from  being  tortured  against  the  latter;*  whence  we  may 
assume  that,  in  other  cases,  manumission  afforded  no  pro- 
tection from  the  rack  and  scourge.  This  question,  however, 
appears  doubtful.  The  exemption  of  freedmen  would  seem 
to  be  proved  by  the  rescript  which  provides  that  inconve- 
nient testimony  should  not  be  got  rid  of  by  manumitting 
Slaves  so  as  to  prevent  their  being  subjected  to  torture;5 
while,  on  the  other  hand,  a  decision  of  Diocletian  directs 
that,  in  cases  of  alleged  fraudulent  wills,  the  slaves  and 
even  the  freedmen  of  the  heir  could  be  tortured  to  ascertain 
the  truth." 

The  policy  of  the  law  in  protecting  masters  from  the  evi- 
dence of  their  tortured  slaves  also  varied  at  different 
periods.  From  an  expression  of  Tacitus,  it  would  seem 
not  to  have  been  part  of  the  original  jurisprudence  of  the 
republic,  but  to  have  arisen  from  a  special  decree  of  the 
senate.  In  the  early  da}^s  of  the  empire,  while  the  monarch 
still  endeavored  to  veil  his  irresponsible  power  under  the 
forms  of  law,  and  showed  his  reverence  for  ancient  rights 
by  evading  them  rather  than  by  boldly  subverting  them, 
Tiberius,  in  prosecuting  Libo  and  Silanus,  caused  their 
slaves  to  be  transferred  to  the  public  prosecutor,  and  was 

1  L.  3  Dig.  xlviii.  xviii. — Const.  13  Cod.  ix.  xli. 

-  L.  10  §  2  Dig.  xlviii.  xviii. — Const.  2  Cod.  ix.  xli  (Sever,  et  Antonin. 
ann.  205). 

J  L.  1  §  11  Dig.  xlviii.  xvii. 
4  L.  1  §  9  Dig.  xlviii.  xvii. 

*  L.  1  §  13  Dig.  xlviii.  xvii. — Pauli  Lib.  v.  Sentt.  Tit.  xvi.  §  9. 
6  Const.  10  Cod   ix.  xli.  (Dioclet.  et  Maxim.) 

25* 


294  TORTURE. 

thus  able  to  gratify  his  vengeance  legally  by  extorting  the 
required  evidence.1  Subsequent  emperors  were  not  reduced 
to  these  subterfuges,  for  the  principle  became  established 
that  in  cases  of  majestatis,  even  as  the  freeman  was  liable 
to  torture,  so  his  slaves  could  be  tortured  to  convict  him  ;9 
and  as  if  to  show  how  utterly  superfluous  was  the  cunning 
of  Tiberius,  the  respect  towards  the  master  in  ordinary 
affairs  was  carried  to  that  point  that  no  slave  could  be 
tortured  against  a  former  owner  with  regard  to  matters 
which  had  occurred  during  his  ownership.3  On  the  other 
hand,  according  to  Ulpian,  Trajan  decided  that  when  the 
confession  of  a  guilty  slave  under  torture  implicated  his 
master,  the  evidence  could  be  used  against  the  master,  and 
this,  again,  was  revoked  by  subsequent  constitutions.4 
Indeed,  it  became  a  settled  principle  of  law  to  reject  all 
incriminations  of  accomplices. 

Having  thus  broken  down  the  protection  of  the  citizen 
against  the  evidence  of  his  slaves  in  accusations  of  treason, 
it  was  not  difficult  to  extend  the  liability  to  other  special 
crimes.  Accordingly  we  find  that,  in  19?,  Septimius  Se- 
verus  specified  adultery,  fraudulent  assessment,  and  crimes 
against  the  state  as  cases  in  which  the  evidence  of  slaves 
against  their  masters  was  admissible.5  The  provision 
respecting  adultery  was  repeated  by  Caracalla  in  214,  and 
afterwards  by  Maximus,6  and  the  same  rule  was  also  held 

1  Et  quia  vetere  Senatusconsulto  quaestio  in  caput  domini  prohibebatur, 
callidus  et  novi  juris  repertor  Tiberius  mancipari  singulos  actori  publico 
jubet. — Tacit.  Annal.  II.  30.  See  also  III.  67.  Somewhat  similar  in  spirit 
was  his  characteristic  device  for  eluding  the  law  which  prohibited  the  exe- 
cution of  virgins  (Sueton.  Tiber.  Ixi.). 

2  This  principle  is  embodied  in  innumerable  laws.  It  is  sufficient  to  refer 
to  Constt.  6  §  2,  7  §  1,  8  §  1  Cod.  ix.  viii. 

3  Servus  in  caput  ejus  domini  a  quo  distractus  est,  cuique  aliquando  ser- 
vivit,  in  memoriam  prioris  dominii  interrogari  non  potest. — L.  18  §  6  Dig. 
xlviii.  xviii.  (Paulus). 

4  L.  1  §  19  Dig.  xlviii.  xviii.  (Ulpian.) 

s  Const.  1  Cod.  ix.  xli.  (Sever,  et  Antonin.) 

6  Constt.  3,  32  Cod.  ix.  ix.— L.  17  Dig.  xlviii.  xviii.  (Papin.) 


IN     H  (>  M  I.  295 

to  be  good  in  cases  <>f  incest.1  It  is  probable  that  this  in- 
creasing tendency  alarmed  the  citizens  of  Rome,  and  that 
they  clamored  for  :i  restitution  of  their  Immunities,  Cor, 
when  Tacitus  was  elected  emperor,  in  2t5,  he  endeavored 

to  propitiate  pttblk  favor  by  proposing  a  law  to  forbid  the 
testimony  of  slaves  against  their  masters  except  in  cases 
of  majcsfa/ix.*  No  trace  of  such  a  law,  however,  is  found 
in  the  imperial  jurisprudence,  and  the  collections  of 
Justinian  show  that  the  previous  regulations  were  in  full 
force  in  the  sixth  century. 

Yet  it  is  probable  that  the  progress  of  Christianity  pro- 
duced some  effect  in  mitigating  the  severity  of  legal  pro- 
cedure, and  in  shielding  the  unfortunate  slave  from  the 
cruelties  to  which  he  was  exposed.  Under  the  republic, 
while  the  authority  of  the  paterfamilias  was  still  una- 
bridged, aii3*  one  could  oner  his  slaves  to  the  torture  when 
he  desired  to  produce  their  evidence.  In  the  earlier  times, 
this  was  done  by  the  owner  himself  in  the  presence  of  the 
family,  and  the  testimony  thus  extorted  was  carefully 
taken  down  to  be  duly  produced  in  court;  but  subsequently 
the  proceeding  was  conducted  by  public  officers — the  quaes- 
tors and  triumviri  capitales.3  How  great  was  the  change 
effected  is  seen  by  the  declaration  of  Diocletian,  in  286,  that 
masters  were  not  permitted  to  bring  forward  their  own 
slaves  to  be  tortured  for  evidence  in  cases  wherein  they 
were  personally  interested.4  This  would  necessarily  reduce 
the  production  of  slave  testimony,  save  in  accusations  of 
majestatis  and  other  excepted  crimes,  to  cases  in  which  the 
slaves  of  third  parties  were  desired  as  witnesses ;  and  even 

1  L.  5  Dig.  xlviii.  xviii.  (Marcian.) 

2  In  eadem  oratione  cavit  ut  servi  in  dorainorum  capita  non  interrogaren- 
tur,  ne  in  causa  majestatis  quidem  (FI.  Vopisc.  Tacit,  cap.  ix.). 

*  Du  Boys,  Hist,  du  Droit  Crim.  des  Peup.  Anciens.  pp.  297,  331,  332. 

*  Servos  qui  proprii  indubitate  juris  tui  probabuntur,  ad  interrogationem 
nee  offerente  te  produci  sineremus  :  tantum  abest  ut  etiam  invito  te  contra 
dominam  vocem  rumpere  cogantur. — Const.  7  Cod.  ix.  xli.  (Dioclet.  et 
Maxim.). 


296  TORTURE. 

in  these,  the  frequency  of  its  employment  must  have  been 
greatly  reduced  by  the  rule  which  bound  the  party  calling  for 
it  to  deposit  in  advance  the  price  of  the  slave,  as  estimated 
by  the  owner,  to  remunerate  the  latter  for  his  death,  or  for 
his  diminished  value  if  he  were  maimed  or  crippled  for  life.1 
When  the  slave  himself  was  arraigned  upon  a  false  accusa- 
tion and  tortured,  an  old  law  provided  that  the  master 
should  receive  double  the  loss  or  damage  sustained  ;2  and 
in  383,  Valentinian  the  Younger  went  so  far  as  to  decree 
that  those  who  accused  slaves  of  capital  crimes  should  in- 
scribe themselves,  as  in  the  case  of  freemen,  and  should  be 
subjected  to  the  lex  talionis  if  they  failed  to  sustain  the 
charge.3  This  was  an  immense  step  towards  equalizing  the 
legal  condition  of  the  bondman  and  his  master.  It  was 
apparently  in  advance  of  public  opinion,  for  the  law  is  not 
reproduced  in  the  compilations  of  Justinian,  and  probably 
soon  was  disregarded. 

There  were  some  general  limitations  imposed  on  the  ap- 
plication of  torture,  but  they  were  hardly  such  as  to  pre- 
vent its  abuse  at  the  hands  of  cruel  or  unscrupulous  judges. 
Antoninus  Pius  set  an  example  which  modern  jurists  might 
well  have  imitated  when  he  directed  that  no  one  should  be 
tortured  after  confession  to  implicate  others  ;4  and  a  rescript 
of  the  same  enlightened  emperor  fixes  at  fourteen  the  mini- 
mum limit  of  age  liable  to  torture,  except  in  cases  of  majes- 
tatis,  when,  as  we  have  seen,  the  law  spared  no  one,  for  in 
the  imperial  jurisprudence  the  safety  of  the  monarch  over- 
rode all  other  considerations.5     Women  were  spared  during 

1  Pauli  Lib.  v.  Sentt.  Tit.  xvi.  §  3 —See  also  LI.  6,  13  Dig.  xlviii.  xviii. 
3  Const.  6  Cod.  ix.  xlvi.     This  provision  of  the  L.  Julia  appears  to  have 
been  revived  by  Diocletian. 

3  Lib.  ix.  Cod.  Theod.  i.  14. 

4  L.  16  §  1  Dig.  xlviii.  xviii.  (Modestin.) 

s  De  minore  quatuordecem  annis  quaestio  habenda  non  est,  ut  et  Divus 
Pius  Cfleeilio  Jubentiano  rescripsit.  §  1.  Sed  omnes  omnino  in  majestatis 
crimine,  quod  ad  personas  prineipum  attinet,  si  ad  testimonium  provocentur, 
cum  res  exigit,  torquentur. — L.  10  Dig.  xlviii.  xviii.  (Arcad.) 


i  \    roii  i.  291 

pregnancy.1  Moderation  was  enjoined  apon  the  ja< 
who  were  t<>  Inflict  only  such  torture  as  the  occasion  ren- 
dered neei'ss;uy.  and  were  not  to  proceed  farther  at  the 
will  of  the  accuser.8  No  one  was  to  be  tortured  without 
the  inscription  of  i  formal  accuser,  who  rendered  himself 
liable  t<>  the  lex  talitmis^  unless  there  were  violent  sus- 
picions to  justify  it  ;s  and  Adrian  reminded  his  magistrates 
that  it  should  be  used  for  the  investigation  of  truth,  and 
not  for  the  infliction  of  punishment.4  Adrian  further 
directed,  in  the  same  spirit,  that  the  torture  of  slave  wit- 
nesses should  only  be  resorted  to  when  the  accused  was  so 
nearly  convicted  that  it  alone  was  required  to  confirm  his 
guilt.5  Diocletian  ordered  that  proceedings  should  never 
be  commenced  with  torture,  but  that  it  might  be  employed 
when  requisite  to  complete  the  proof,  if  other  evidence 
afforded  rational  belief  in  the  guilt  of  the  accused.'1 

What  was  the  exact  value  set  upon  evidence  procured  by 
torture  it  would  be  difficult  at  this  day  to  determine.  We 
have  seen  above  that  Augustus  pronounced  it  the  best  form 
of  proof,  but  other  legislators  and  jurists  thought  ditferently. 
Modestinns  affirms  that  it  is  only  to  be  believed  when  there 
is  no  other  mode  of  ascertaining  the  truth.7  Adrian  cau- 
tions his  judges  not  to  trust  to  the  torture  of  a  single 
slave,  but  to  examine  all  cases  by  the  light  of  reason  and 
argument.8  According  to  Ulpian,  the  imperial  constitu- 
tions provided  that  it  was  not  always  to  be  received  nor 
always  rejected;  in  his  own  opinion  it  was  unsafe,  danger* 

1  L.  3  Dig.  xlviii.  xix.  (Ulpian.) 

3  Tormenta  autem  adhibenda  sunt  non  quanta  accusator  postulat ;  sed  ut 
moderatao  rationis  teinperamenta  desiderant. — L.  10  §  3  Dig.  xlviii.  xviii. 
3  L.  22  Dig.  xlviii.  xviii. 

*  L.  21  Dig.  xlviii.  xviii. 

*  L.  1  $  1  Dig.  xlviii.  xviii.  (Ulpian.) 

6  Const.  8  Cod.  ix.  xli.  (Dioclet.  et  Maxim.) 
1  L.  7.  Dig.  xx.  v. 

8  Non  utique  in  servi  unius  quajstione  fidem  rei  constituendam,  sed  argu- 
ments causam  examinandam. — L.  1  §  4  Dig.  xlviii.  xviii.  (Ulpian.) 


298  TORTURE. 

ous,  and  deceitful,  for  some  men  were  so'resolute  that  they 
would  bear  the  extremity  of  torment  without  yielding, 
while  others  were  so  timid  that  through  fear  they  would 
at  once  inculpate  the  innocent.1  From  the  manner  in 
which  Cicero  alternately  praises  and  discredits  it,  we  can 
safely  assume  that  lawyers  were  in  the  habit  of  treating  it, 
not  on  any  general  principle,  but  according  as  it  might* 
affect  their  client  in  any  particular  case;  and  Quintilian 
remarks  that  it  was  frequently  objected  to  on  the  ground 
that  torture  renders  falsehood  easy  to  some  and  necessary 
to  others,  in  proportion  to  their  ability  or  inability  to  en- 
dure pain.2  That  these  views  were  shared  by  the  public 
would  appear  from  the  often  quoted  maxim  of  Publius 
Syrus — "  Etiam  innocentes  cogit  mentiri  dolor" — and  from 
Valerius  Maximus,  who  devotes  his  chapter  "De  Quaes- 
tionibus"  to  three  cases  in  which  it  was  erroneously  either 
trusted  or  distrusted.  A  slave  of  M.  Agrius  was  accused 
of  the  murder  of  Alexander,  a  slave  of  C.  Fannius.  Agrius 
tortured  him,  and,  on  his  confessing  the  crime,  handed  him 
over  to  Fannius,  who  put  him  to  death.  Shortly  afterwards, 
the  missing  slave  returned  home.  This  same  Alexander  was 
made  of  sterner  stuff,  for  when  he  was  subsequently  sus- 
pected of  being  prrvv  to  the  murder  of  C.  Flavius,  a  Roman 
knight,  he  was  tortured  six  times  and  persistently  denied 
his  guilt,  though  he  subsequently  confessed  it  and  was  duly 
crucified.  A  curious  instance,  moreover,  of  the  little  real 
weight  attached  to  such  evidence  is  furnished  by  the  case 
of  Fulvius  Flaccus,  in  which  the  whole  question  turned 
upon  the  evidence  of  his  slave  Philip.  This  man  was 
actually  tortured  eight  times,  and  refused  through  it  all 
to  criminate  his  master,  who  was  nevertheless  condemned.3 

1  L.  1  §  23  Dig.  xlviii.  xviii. — Res  est  fragilis  et  periculosa  et  quao  veri- 
tatem  fallat. 

2  Altera  saspe  etiam  causam  falsa  dicendi,  quod  aliis  patientia  facile  men- 
dacium  faciat,  aliis  infiruiitas  necessarium. — M.  F.  Quintil.  Inst.  Orat.  v.  iv. 

3  Valer.  Maxim.  Lib.  vm.  o.  iv. 


!  \     U<>  M  K.  299 

Quintets  Curt  ins  probably  reflects  the  popular  feeling  on 

the  subject,  in  his  pathet  it-  uarrat  tve  of  t  lie  tort  u  re  of  I'll  i  Io- 
tas on  a  charge  of .  conspiracy  against  Alexander.  After 
endnring  in  silence  the  extremity  of  hideous  torment,  he 
promised  to  confess  if  it  were  stopped,  and  when  the  tor- 
turers were  removed  he  addressed  his  brother-in-law  Ora- 
terns,  who  was  condncting  the  investigation:  "Tell  me 
what  you  wish  me  to  say."  Curtius  adds  that  no  one 
knew  whether  or  not  to  believe  his  final  confession,  for 
torture  is  as  aptto  bring  forth  lies  as  truth.1 

From  the  instances  given  by  Valerius  Maximus,  it  may 
be  Inferred  that  there  was  do  limit  set  upon  the  application 
of  torture.  The  extent  to  which  it  might  be  carried 
appears  to  have  rested  with  the  discretion  of  the  tribunals, 
for,  with  the  exception  of  the  general  injunctions  of  mode- 
ration alluded  to  above,  no  instructions  for  its  administra- 
tion are  to  be  found  in  the  Roman  laws  which  have  been 
preserved  to  us,  unless  it  be  the  rule  that  when  several 
persons  were  accused  as  accomplices,  the  judges  were 
directed  to  commence  with  the  youngest  and  weakest.3 

Since  the  time  of  Sigonius,  much  antiquarian  research 
has  been  directed  to  investigating  the  various  forms  of 
torture  employed  by  the  Romans.  They  illustrate  no 
principles,  however,  and  it  is  sufficient  to  enumerate  the 
rack,  the  scourge,  fire  in  its  various  forms,  and  hooks  for 
tearing  the  flesh,  as  the  modes  generally  authorized  by  law. 
The  Christian  historians,  in  their  narratives  of  the  fearful 
persecutions  to  which  their  religion  was  exposed,  give  us  a 
more  extended  idea  of  the  resources  of  the  Roman  torture 
Chamber.  Thus  Prudentius,  in  his  description  of  the  mar- 
tyrdom of  St.  Vincent,  alludes  to  a  number  of  varieties, 
among  which  we  recognize  some  that  became  widely  used 

1  Q.  Curt.  Ruf.  Hist.  vi.  xi.  Anceps  conjectura  est  quoniam  et  vera  oon- 
feuia  ft  t';ils;i  dicentibus  idem  doloris  finis  ostenditur. 

-  Pauli  Lib.  v.  Sentt.  Tit.  xiv.  §  2.— L.  18  Dig.  xlviii.  xviii. 


300  TORTURE. 

in  after  times,  showing  that  little  was  left  for  modern  inge- 
nuity to  invent. 

"Vinctum  retortis  brachiis,  Truculentus  hostis  martyrem 

Sursuin  ac  deorsum  extendite,  Lignoque  plantas  inserit, 

Compago  donee  ossium  Divaricatis  cruribus. 
Divulsa  membratim  crepet.  Quin  addit  et  pcenam  novam 

Post  Wdo  biulcis  ictibus  Crucis  peritus  artifex, 

Nudate  costarum  abdita  Nulli  tyranno  cognitain 

Ut  per  lacunas  vulnerum  Nee  fando  compertam  retro. 
Jecur  retectum  palpitet.  Fragmenta  testarum  jubet 

*  *         *         *  Hirta  impolitis  angulis 
Tunc  deinde  cunctatus  diu  Acuminata,  inforinia, 

Decernit  extrema  omnium  :  Tergo  jacentis  sternere. 
Igni,  grabato,  et  laminis  Totum  cubile  spiculis 

Exerceatur  quaestio.  Armant  dolores  anxii : 

*  *         *         *  Insomne  qui  subter  latus 

In  hoc  barathrum  conjecit  Mucrone  pulsent  obvio."  etc.1 

I  have  dwelt  thus  at  length  on  the  details  of  the  Roman 
law  of  torture  because,  as  will  be  seen  hereafter,  it  was  the 
basis  of  all  modern  legislation  on  the  subject,  and  has  left 
its  impress  on  the  far  less  humane  administration  of  crimi- 
nal justice  in  Europe  almost  to  our  own  clay.  Yet  at  first 
it  seemed  destined  to  disappear  utterly  from  human  sight 
with  the  downfall  of  the  Roman  power. 

In  turning  from  the  nicety  poised  and  elaborate  provi- 
sions of  the  Imperial  laws  to  the  crude  jurisprudence  of  the 
Barbarian  hordes  who  gradually  inherited  the  crumbling 
remains  of  the  Empire  of  the  West,  we  enter  into  social 
and  political  conditions  so  different  that  we  are  naturally 
led  to  expect  a  corresponding  contrast  in  e\^ery  detail  of 
legislation.  For  the  cringing  suppliant  of  the  audience 
chamber,  abjectly  prostrating  himself  before  a  monarch 
who  combines  in  his  own  person  every  legislative  and 
executive  function,  we  have  the  freeman  of  the  German 

1  Aurel.  Prudent,  de  Vincent.  Hymn.  v. 


BARBARIAN    CHARACTERISTICS.  801 

forests,  who  sits  in  council  with  his  chief,  who  frames  the 
Laws  which  both  are  bound  t<>  respect,  and  nnIi<>  pays  to 
that  chief  only  the  amount  of  obedience  which  superior 
vigor  and  intellect  may  be  able  to  enforce.  The  structure 
of  such  a  society  is  fairly  illustrated  by  the  incident  which 
Gregory  of  Tours  selects  to  prove  the  kingly  qualities  of 
Clovis.  During  his  conquest  of  Gaul,  and  before1  his  con- 
version, his  wild  followers  pillaged  the  churches  with  little 
ceremony.  A  bishop,  whose  cathedral  had  suffered  largely, 
sent  to  the  kiug  to  request  that  a  certain  vase  of  unusual 
size  and  beauty  might  be  restored  to  him.  Clovis  could 
only  promise  that  if  the  messenger  would  accompany  him 
to  Soissons,  where  the  spoils  were  to  be  divided,  and  if 
the  vase  should  chance  to  fall  to  his  share,  it  should  be 
restored.  When  the  time  came  for  allotting  the  plunder, 
he  addressed  his  men,  requesting  as  a  special  favor  that 
the  vase  might  be  given  to  him  before  the  division,  but  a 
sturdy  soldier,  brandishing  his  axe,  dashed  it  against  the 
vase,  exclaiming,  "Thou  shalt  take  nothing  but  what  the 
lot  assigns  to  thee."  For  a  3rear,  Clovis  dissembled  his 
resentment  at  this  rebuff,  but  at  length,  when  opportunity 
offered,  he  was  prompt  to  gratify  it.  While  reviewing  and 
inspecting  his  troops,  he  took  occasion  to  bitterly  reproach 
the  uncourtly  Frank  with  the  condition  of  his  weapons, 
which  he  pronounced  unserviceable.  The  battle-axe  excited 
his  especial  displeasure.  He  threw  it  angrily  to  the  ground, 
and  as  the  owner  stooped  to  pick  it  up,  Clovis  drove  his 
own  into  the  soldier's  head,  with  the  remark,  "  It  was  thus 
3tou  served  the  vase  at  Soissons."1 

This  personal  independence  of  the  freeman  is  one  of  the 
distinguishing  characteristics  of  all  the  Teutonic  institu- 
tions of  that  age.  Corporal  punishments  for  him  were 
unknown  to  the  laws.  The  principal  resource  for  the  repres- 
sion of  crime  wras  by  giving  free  scope  to  the  vengeance  of 

1  Greg.  Turon.  Hist.  Franc.  Lib.  II.  c.  xxvii. 

26 


302  TORTURE. 

the  injured  party,  and  by  providing  fixed  rates  of  composi- 
tion by  which  he  could  be  bought  off.  As  the  criminal  could 
defend  himself  with  the  sword  against  the  faida  or  feud  of 
his  adversary,  or  could  compound  for  his  guilt  with  money, 
the  suggestion  of  torturing  him  to  extort  a  confession  would 
seem  an  absurd  violation  of  all  his  rights.  Crimes  were 
regarded  solely  as  injuries  to  individuals,  and  the  idea 
that  society  at  large  was  interested  in  their  discovery, 
punishment,  and  prevention,  was  entirely  too  abstract  to 
have  any  influence  on  the  legislation  of  so  barbarous 
an  age. 

According^,  the  codes  of  the  Ripuarians,  the  Alamanni, 
the  Angli  and  Werini,  the  Frisians,  the  Saxons,  and  the 
Lombards  contain  no  allusion  to  the  employment  of  tor- 
ture under  any  circumstances  ;  and  such  few  directions  for 
its  use  as  occur  in  the  laws  of  the  Salien  Franks,  of  the 
Burgundians,  and  of  the  Baioarians,  do  not  conflict  with 
the  general  principle. 

The  personal  inviolability  which  shielded  the  freeman 
cast  no  protection  over  the  slave.  He  was  merely  a  piece 
of  property,  and  if  he  were  suspected  of  a  crime,  the  readiest 
and  speediest  way  to  convict  him  was  naturally  adopted. 
His  denial  could  not  be  received  as  satisfactory,  and  the 
machinery  of  sacramental  purgation  or  the  judicial  duel 
was  not  for  him.  If  he  were  charged  With  a  theft  at  home, 
his  master  would  undoubtedly  tie  him  up  and  flog  him  until 
he  confessed,  and  if  the  offence  were  committed  against  a 
third  party,  the  same  process  would  necessarily  be  adopted 
by  the  court.  Barbarian  logic  could  arrive  at  no  other 
mode  of  discovering  and  repressing  crime  among  the  friend- 
less and  unprotected,  whose  position  seemed  to  absolve 
them  from  all  moral  responsibility. 

The  little  that  we  know  of  the  institutions  of  the  ancient 
Gauls  presents  us  with  an  illustration  of  the  same  prin- 
ciple developed  in  a  somewhat  different  direction.  Caesar 
states  that,  when  a  man  of  rank  died,  his  relatives  assem- 


Til  1:    B  \  B  B  \  B  i  a  N  B.  808 

bled  Bind  Investigated  the  cirenmstancee  of  hi*  death,  [f 
suspicion  alighted  apon  his  vrives,  they  irere  tortured  like 
Blares,  and  if  found  guilty  were  executed  with  all  the 
refinements  of  torment.1 

In  aooordanoa  with  this  tendency  of  Legislation,  therefore, 
we  find  that  among  the  Barbarians  the  Legal  regulat  ions  Cor 
the  torture  of  slaves  are  intended  to  protect  the  interests 
of  the  owner  alone.  The  master,  indeed,  could  not  refuse 
his  slave  to  the  torturer,  unless  he  were  willing  to  pay  for 
him  the  full* wehrgild  of  a  freeman,  and  if  the  slave  con- 
fessed under  the  torture,  the  master  had  no  claim  for  com- 
pensation  arising  either  from  the  punishment  or  crippling 
of  his  bondman.3  When,  however,  the  slave  could  not  be 
forced  to  confess  and  was  acquitted,  the  owner  had  a  claim 
for  damages,  though  no  compensation  was  made  to  the 
unfortunate  sufferer  himself.  The  original  law  of  the  Bur- 
gundians,  promulgated  in  471,  is  the  earliest  of  the  Teutonic 
codes  extant,  and  in  that  we  find  that  the  accuser  who  failed 
to  extract  a  confession  was  obliged  to  give  to  the  owner 
another  slave,  or  to  pay  his  value.3  The  Baioarian  law  is 
equally  careful  of  the  rights  of  ownership,  but  seems  in 
addition  to  attach  some  slight  shade  of  criminality  to  the 
excess  of  torture  by  the  further  provision  that,  if  the  slave 
die  under  the  torment  without  confession,  the  prosecutor 
shall  pay  to  the  owner  two  slaves  of  like  value,  and  if 
unable  to  do  so,  that  he  shall  himself  be  delivered  up  as  a 
slave.4     The  Salique  law,  on  the  other  hand,  only  guards 

1  De  Bell.  Gall.  vi.  xix. 

2  These  provisions  are  only  specified  in  the  Salique  Law  (First  Text  of 
Pardessus,  Tit.  xl.  §$  6,  7,  8,  9,  10.— L.  Emend.  Tit.  xlii.  §$  8,  9,  10,  11, 
12,  13),  but  they  were  doubtless  embodied  in  the  practice  of  the  other  tribes. 

3  L.  Burgund.  Tit.  vn. — The  other  allusions  to  torture  in  this  code,  Tit. 
xxxix.  §§  1,  2,  and  Tit.  lxxvii.  §§  1,  2,  also  refer  only  to  slaves,  coloni,  and 
originarii.  Persons  suspected  of  being  fugitive  slaves  were  always  tortured 
to  ascertain  the  fact,  which  is  in  direct  contradiction  to  the  principles  of  the 
Roman  law.. 

4  L.  Baioar.  Tit.  vm.  c.  xviii.  §§  1,  2,  3. 


304  TORTURE. 

the  interests  of  the  owner  by  limiting  the  torture  to  120 
blows  with  a  rod  of  the  thickness  of  the  little  finger.  If 
this  does  not  extort  a  confession,  and  the  accuser  is  still 
unsatisfied,  he  can  deposit  the  value  of  the  slave  with  the 
owner,  and  then  proceed  to  torture  him  at  his  own  risk 
and  pleasure.1 

It  will  be  observed  that  all  these  regulations  provide 
merely  for  extracting  confessions  from  accused  slaves,  and 
not  testimony  from  witnesses.  Indeed,  the  system  of  evi- 
dence adopted  by  all  the  Barbarian  laws  for  freemen  was 
of  so  different  a  character,  that  no  thought  seems  to  have 
been  entertained  of  procuring  proof  by  the  torture  of  wit- 
nesses. The  only  allusion,  indeed,  to  such  a  possibility 
shows  how  utterly  repugnant  it  was  to  the  Barbarian 
modes  of  thought.  In  some  MSS.  of  the  Salique  law  there 
occurs  the  incidental  remark  that  when  a  slave  accused  is 
under  the  torture,  if  his  confession  implicates  his  master, 
the  charge  is  not  to  be  believed.3 

Such  was  the  primitive  legislation  of  the  Barbarians,  but 
though  in  principle  it  was  long  retained,  in  practice  it  was 
speedily  disregarded  by  those  whom  irresponsible  power 
elevated  above  the  law.  The  Roman  populations  of  the  con- 
quered territories  were  universally  allowed  to  live  under  their 
old  institutions ;  in  fact,  law  everywhere  was  personal  and  not 
territorial,  every  race  and  tribe,  however  intermingled  on 

1  L.  Salic.  First  Text,  Tit.  xl.  §§  1,  2,  8,  4—  L.  Emend.  Tit.  xlii.  §§  1, 
2,  3,  4,  5. — In  a  treaty  between  Childebert  and  Clotair,  about  the  year  593, 
there  is,  however,  a  clause  which  would  appear  to  indicate  that  in  doubtful 
cases  slaves  were  subjected,  not  to  torture,  but  to  the  ordeal  of  chance.  "  Si 
servus  in  furto  fuerit  inculpatus,  requiratur  a  domino  ut  ad  viginti  noctes 
ipsum  in  mallum  prsesentet.  Et  si  dubietas  est,  ad  sortem  ponatur."  (Pact, 
pro  Tenore  Pacis  cap.  v. — Baluz.)  This  was  probably  only  a  temporary 
international  regulation  to  prevent  frontier  quarrels  and  reprisals.  That  it 
had  no  permanent  force  of  law  is  evident  from  the  retention  of  the  procedures 
of  torture  in  all  the  texts  of  the  Salique  law,  including  the  revision  by  Char- 
lemagne. 

2  First  Text,  Tit.  xl.  §  4.— MS.  Monaster.  Tit.  xl.  §  3.— L.  Emend.  Tit. 

XLII.   §   6. 


T  11  K    M  1:  ttOVINGIAl 

the  same  soil,  being  subjected  to  its  own  system  of  jurispru- 
dence.    The  Bummary  prooeas  of  extract  in  g  confessions 

and  testimony  which  the  Uoinan  practice  thus  daily  brought 
under  the  notice  of  the  barbarians  could  not  but  be  attrac- 
tive to  their  violent  and  untutored  passions.  Their  political 
system  was  too  loose  and  undefined  to  maintain  the  freedom 
of  the  Sieambrian  forests  in  the  wealthy  plains  of  France, 
and  the  monarch,  who,  beyond  the  Rhine,  had  scarce  been 
more  than  a  military  chief,  speedily  became  a  despot,  whose 
power  over  those  immediately  around  him  was  limited  only 
by  the  fear  of  assassination,  and  over  his  more  distant  sub- 
jects by  the  facility  of  revolution. 

When  all  thus  was  violence,  and  the  law  of  the  strongest 
was  scarcely  tempered  by  written  codes,  it  is  easy  to  imagine 
that  the  personal  inviolability  of  the  freeman  speedily  ceased 
to  guarantee  protection.  In  the  long  and  deadly  struggle 
between  Fredegonda  and  Brunhilda,  for  example,  the  fierce 
passions  of  the  adversaries  led  them  to  employ  without 
scruple  the  most  cruel  tortures  in  the  endeavor  to  fathom 
each  other's  plots.1  A  single  case  may  be  worth  recounting 
to  show  how  completely  torture  had  become  a  matter  of 
course  as  the  first  resource  in  the  investigation  of  doubtful 
questions.  When  Leudastes,  about  the  year  580,  desired 
to  ruin  the  pious  Bishop  Gregory  of  Tours,  he  accused  him 
to  Chilperic  I.  of  slandering  the  fair  fame  of  Queen  Frede- 
gonda, and  suggested  that  full  proof  for  condemnation 
could  be  had  by  torturing  Plato  and  Gallienus,  friends  of 
the  bishop.  He  evidently  felt  that  nothing  further  was 
required  to  substantiate  the  charge,  nor  does  Gregory  him- 
self, in  narrating  the  affair,  seem  to  think  that  there  was 
anything  irregular  in  the  proposition.  Gallienus  and  Plato 
were  seized,  but  from  some  cause  were  discharged  unhurt. 
Then  a  certain  Riculfus,  an  accomplice  of  Leudastes,  was 

1  Greg.  Turon.  Hist.  Franc.  Lib.  vn.  c.  xx. — Aimoin.  Lib.  HI.  c.  xxx. 
xlii.  li.  lxiv.  lxvii. — Flodoard.  Hist.  Reraens.  Lib.  If.  c.  ii. 

26* 


30fi  TORTURE. 

reproached  for  his  wickedness  by  a  man  named  Modestus, 
whereupon  he  accused  Modestus  to  Fredegonda,  who 
promptly  caused  the  unhappy  wretch  to  be  severely  tor- 
tured without  extracting  any  information  from  him,  and 
he  was  imprisoned  until  released  by  the  miraculous  aid  of 
St.  Medard.  Finally,  Gregory  cleared  himself  canonically 
of  the  imputation,  and  the  tables  were  turned.  Leudastes 
sought  safety  in  flight.  Riculfus  was  not  so  fortunate. 
Gregory  begged  his  life,  but  could  not  save  him  from  being 
tortured  for  confession.  For  six  hours  he  was  hung  up 
with  his  hands  tied  behind  his  back,  and  then,  stretched 
upon  the  rack,  he  was  beaten  with  clubs,  rods,  and  thongs, 
by  as  many  as  could  get  at  him,  until,  as  Gregory  naively 
remarks,  no  piece  of  iron  could  have  borne  it.  At  last, 
when  nearly  dead,  his  resolution  gave  way,  and  he  confessed 
the  whole  plot  by  which  it  had  been  proposed  to  get  rid  of 
Chilperic  and  Fredegonda,  and  to  place  Clovis  on  the  throne.1 
Now,  Plato,  Gallienus,  and  Modestus  were  probably  of 
Gallo-Roman  origin,  but  Riculfus  was  evidently  of  Teu- 
tonic stock ;  moreover,  he  was  a  priest,  and  Plato  an  arch- 
deacon, and  the  whole  transaction  shows  that  canon  law 
and  Frankish  law  were  of  little  avail  against  the  unbridled 
passions  of  the  Merovingian. 

Of  all  the  Barbarian  tribes,  none  showed  themselves  so 
amenable  to  the  influences  of  Roman  civilization  as  the 
Goths.  Their  comparatively  settled  habits,  their  early  con- 
version to  Christianity,  and  their  position  as  allies  of  the 
empire  long  before  they  became  its  conquerors,  rendered 
them  far  less  savage  under  Alaric  than  were  the  Franks  in 
the  time  of  Clovis.  The  permanent  occupation  of  Septi- 
mania  and  Catalonia  by  the  Wisigoths,  also,  took  place  at 
a  period  when  Rome  was  not  as  yet  utterly  sunk,  and  when 
the  power  of  her  name  still   possessed  something  of  its 

1  Gregor.  Turon.  Hist.  Franc.  Lib.  v.  c.  xlix. 


r  II  |    OSTROGOTH 8.  801 

ancient  influence,  which  could  not  bni  modify  the  institu- 
tions of  the  new-comers  as  they  strove  toadapl  their  primi- 
tive customs  to  the  altered  circumstances  under  which 

they  found  themselves.  It  is  not  to  be  wondered  at.  there- 
fore, if  their  laws  reflect  a  condition  of  higher  civilization 
than  those  of  kindred  races,  and  if  the  Roman  jurispru- 
dence has  left  in  tl^'in  traces  of  the  appreciation  of  that, 
wonderful  work  of  the  human  intellect  which  the  Goths 
were  sufficiently  enlightened  to  entertain. 

The  Ostrogoths,  allowing  for  the  short  duration  of  their 
nationality,  were  almost  as  much  exposed  to  the  influences 
of  Rome.  Their  leader,  Theodoric,  had  been  educated  in 
Constantinople)  and  was  fully  :is  much  a  Roman  as  many  of 
the  Barbarian  soldiers  who  had  risen  to  high  station  under 
the  emperors,  or  even  to  the  throne  itself.  All  his  efforts 
were  directed  to  harmonizing  the  institutions  of  his  dif- 
ferent subjects,  and  he  was  too  enlightened  not  to  see  the 
manifest  superiority  of  the  Roman  polity. 

His  kingdom  was  too  evanescent  to  consolidate  and  per- 
fect its  institutions  or  to  accumulate  any  extended  body  of 
jurisprudence.  What  little  exists,  however,  manifests  a 
compromise  between  the  spirit  of  the  Barbarian  tribes  of 
the  period  and  that  of  the  conquered  mistress  of  the  world. 
The  Edict  of  Theodoric  does  not  allude  to  the  torture  of 
freemen,  and  it  is  probable  that  the  free  Ostrogoth  could 
not  legally  be  subjected  to  it.  With  respect  to  slaves,  its 
provisions  seem  mainly  borrowed  from  the  Roman  law. 
No  slave  could  be  tortured  against  a  third  party  for  evidence 
unless  the  informer  or  accuser  was  prepared  to  indemnify 
the  owTner  at  his  own  valuation  of  the  slave.  No  slave 
could  be  tortured  against  his  master,  but  the  purchase  of  a 
slave  to  render  his  testimony  illegal  was  pronounced  null 
and  void ;  the  purchase  money  was  returned,  and  the  slave 
was  tortured.  The  immunity  of  freedmen  is  likewise  shown 
by  the  cancelling  of  any  manumission  conferred  for  the 


308  TORTURE. 

purpose  of  preventing  torture  for  evidence.1  Theodoric, 
however,  allowed  his  Roman  subjects  to  be  governed  by 
their  ancient  laws,  and  he  apparently  had  no  repugnance 
to  the  use  of  torture  when  it  could  legally  be  inflicted. 
Thus  he  seems  particularly  anxious  to  ferret  out  and 
punish  sorcerers,  and  in  writing  to  the  Prefect  and  Count  of 
Rome  he  urges  them  to  apprehend  certain  suspected  parties, 
and  try  them  by  the  regular  legal  process,  which,  as  we 
have  seen,  by  the  edicts  of  Constantius  and  his  successors, 
was  particularly  severe  in  enjoining  torture  in  such  cases, 
both  as  a  means  of  investigation  and  of  punishment.8 

On  the  other  hand,  the  Wisigoths  founded  a  permanent 
state,  and  as  they  were  the  only  race  whose  use  of  torture 
was  uninterrupted  from  the  period  of  their  settlement  until 
modern  times,  and  as  their  legislation  on  the  subject  was 
to  a  great  extent  a  model  for  that  of  other  nations,  it  may 
be  worth  while  to  examine  it  somewhat  closety. 

The  earliest  code  of  the  Wisigoths  is  supposed  to  have 
been  compiled  by  Eurik,  in  the  middle  of  the  fifth  century, 
but  it  was  subsequently  much  modified  by  recensions  and 
additions.  It  was  remoulded  by  Chindaswind  and  Recas- 
wind  about  the  middle  of  the  seventh  century,  and  it  has 
reached  us  only  in  this  latest  condition,  while  the  MSS. 
vary  so  much  in  assigning  the  authorship  of  the  various 
laws,  that  but  little  reliance  can  be  placed  upon  the 
assumed  dates  of  most  of  them.  Chindaswind,  moreover, 
in  issuing  his  revised  code,  prohibited  for  the  future  the 
use  of  the  Roman  law,  which  had  previously  been  in  force 
among  the  subject  populations,  under  codes  specially  pre- 
pared for  them  by  order  of  Alaric  II.  Thus  the  Wisigothic 
laws,  as  we  have  them,  are  not  laws  of  race,  like  the  other 
Barbarian  codes,  but  territorial  laws  carefully  digested  for 
a  whole  nation  by  men  conversant  alike  with  the  Roman 
and  with  their  own  ancestral  jurisprudence. 

1  Edict   Theodor.  cap.  c.  ci.  cii.  2  Cassiodor.  Variar.  iv.  xxii   xxiii. 


T  ii  I    WI8IOOTHS.  809 

It  is  therefore  no1  surprising  to  iiiul  in  them  the  nee  of 
torture  legalised  somewhal  after  the  fashion  of  the  impe- 
rial constitutions.  Mini  vet  with  some  humane  modification! 

and  restrictions.  Slaves  were  liable  to  torture  cinder  :uni- 
sation,  but  the  accuser  had  first  to  make  oath  that  he  was 
actuated  by  neither  fraud  nor  malice  in  preferring  the 

charge  ;  and  he  was  further  obliged  to  give  security  that  lie 
would  deliver  to  the  owner  another  slave  of  equal  value  if 
tin1  accused  were  acquitted.  If  an  innocent  slave  were 
crippled  in  the  torture,  the  accuser  was  bound  to  give  two 
<>f  like  value  to  the  owner,  and  the  accused  received  his 
freedom.  If  the  accused  died  under  the  torture,  the  judge 
who  had  manifested  so  little  feeling  and  discretion  in  per- 
mitting it  was  also  fined  in  a  slave  of  like  value,  making 
three  enuring  to  the  owner,  and  careful  measures  were  pre- 
scribed to  insure  that  a  proper  valuation  was  made.  If  the 
accuser  were  unable  to  meet  the  responsibility  thus  incurred, 
he  was  himself  forfeited  as  a  slave.  Moreover,  the  owner 
was  always  at  liberty  to  save  his  slave  from  the  torture  Im- 
proving his  innocence  otherwise  if  possible ;  and  if  he  suc- 
ceeded, the  accuser  forfeited  to  him  a  slave  of  equal  value, 
and  was  obliged  to  pay  all  the  costs  of  the  proceedings.1 

Freedmen  were  even  better  protected.  They  could  only 
be  tortured  for  crimes  of  which  the  penalties  exceeded  a 
certain  amount,  varying  with  the  nature  of  the  freedom 
enjoyed  by  the  accused.  If  no  confession  were  extorted, 
and  the  accused  were  crippled  in  the  torture,  the  judge  and 
the  accuser  were  both  heavily  fined  for  his  benefit,  and  if 
he  died  the  fines  were  paid  to  his  family.3 

There  could  have  been  little  torturing  of  slaves  as  wit- 
nesses, for  in  general  their  evidence  was  not  admissible, 
even  under  torture,  against  any  freeman,  including  their 
masters.     The  slaves  of  the  royal  palace,  however,  could 

'  L.  Wisigoth.  Lib.  vi.  Tit.  i.  1.  5.  3  Ibid. 


310  TORTURE. 

give  testimony  as  though  they  were  freemen,1  and,  as  in 
the  Roman  law,  there  were  certain  excepted  crimes,  such 
as  treason,  adultery,  homicide,  sorcery,  and  coining,  in 
accusations  of  which  slaves  could  be  tortured  against  their 
masters,  nor  could  they  be  preserved  by  manumission 
against  this  liability.8 

As  regards  freemen,  the  provisions  of  different  portions 
of  the  code  do  not  seem  precisely  in  harmony,  but  all  of 
them  throw  considerable  difficulties  in  the  way  of  pro- 
cedures by  torture.  An  early  law  directs  that,  in  cases  of 
theft  or  fraud,  no  one  shall  be  subjected  to  torture  unless 
the  accuser  bring  forward  the  informer,  or  inscribe  himself 
with  three  sureties  to  undergo  the  lex  talionis  in  case  the 
accused  prove  innocent.  Moreover,  if  no  confession  were 
extorted,  the  informer  was  to  be  produced.  If  the  accuser 
could  not  do  this,  he  was  bound  to  name  him  to  the  judge, 
who  was  then  to  seize  him,  unless  he  were  protected  by 
some  one  too  powerful  for  the  judicial  authority  to  control. 
In  this  event  it  was  the  duty  of  the  judge  to  summon  the 
authorities  to  his  aid,  and  in  default  of  so  doing  he  was 
liable  for  all  the  damages  arising  from  the  case.  The  in- 
former, when  thus  brought  within  control  of  the  court, 
was,  if  a  freeman,  declared  infamous  and  obliged  to  pay 
ninefold  the  value  of  the  matter  in  dispute ;  if  a  slave,  six- 
fold, and  to  receive  a  hundred  lashes.  If  the  freeman  were 
too  poor  to  pay  the  fine,  he  was  adjudged  as  a  slave  in 
common  to  the  accuser  and  the  accused.3 

A  later  law,  issued  by  Chindaswind,  is  even  more  careful 
in  its  very  curious  provisions.  No  accuser  could  force  to 
the  torture  a  man  higher  in  station  or  rank  than  himself. 
The  only  cases  in  which  it  was  permitted  for  nobles  were 
those  of  treason,  homicide,  and  adultery,  while  for  freemen 
of  humbler  position  the  crime  must  be  rated  at  a  fine  of 

1  L.  Wisigoth.  H.  iv.  4. 

3  Ibid.  vi.  i.  4  ;   VII.  vi.  1  ;  Till.  iv.  10,  11. 

3  Ibid.  vi.  i.  1. 


T  H  |     WISIGOTI!  S.  .'Ill 

500  solidi  at  least.  Jn  these  cases,  :m  open  trial  was  first 
prescribed.  If  this  were  fruitless,  the  accuser  who  desired 
to  push  the  matter  bound  himself  in  case  Of  failure  to 
deliver  himself  up  as  a  slave  to  the  accused,  who  could 
maltreat  him  at  pleasure,  short  of  taking  his  life,  or  com- 
pound with  him  at  his  own  valuation  of  his  Bufferings. 
The  torture  then  might  last  for  three  days;  the  accuser 
was  the  torturer,  subject  to  the  supervision  of  the  judge, 
and  might  inflict  torment  to  any  extent  that  his  ingenuity 
could  suggest,  short  of  producing  permanent  injury  or 
death.  If  death  resulted,  the  accuser  was  delivered  to  the 
relatives  of  the  deceased  to  be  likewise  put  to  death;  the 
judge  who  had  permitted  it  through  collusion  or  corruption 
was  exposed  to  the  same  fate,  but  if  he  could  swear  that 
he  had  not  been  bribed  by  the  accuser,  he  was  allowed  to 
escape  with  a  fine  of  500  solidi.  A  very  remarkable  regula- 
tion, moreover,  provided  against  false  confessions  extorted 
by  torment.  The  accuser  was  obliged  to  draw  up  his  accu- 
sation in  all  its  details,  and  submit  it  secretly  to  the  judge. 
Any  confession  under  torture  which  did  not  agree  substan- 
tially with  this  was  set  aside,  and  neither  convicted  the 
accused  nor  released  the  accuser  from  the  penalties  to 
which  he  was  liable.1 

Under  such  a  system,  strictly  enforced,  few  persons 
would  be  found  hardy  enough  to  incur  the  dangers  of  sub- 
jecting an  adversary  to  the  rack.  As  with  the  Franks, 
however,  so  among  the  Wisigoths,  the  laws  were  not  pow- 
erful enough  to  secure  their  own  observance.  The  authority 
of  the  kings  grew  gradually  weaker  and  less  able  to  repress 
the  assumptions  of  ambitious  prelates  and  unruly  grandees, 
and  it  is  easy  to  imagine  that  in  the  continual  struggle  all 
parties  sought  to  maintain  and  strengthen  their  position 
by  an  habitual  disregard  of  law.  At  the  Thirteenth  Coun- 
cil of  Toledo,  in  683,  King  Erwig,  in  his  opening  address, 

1  L.  Wisigoth.  vi.  i.  2. 


312  TORTURE. 

alludes  to  the  frequent  abuse  of  torture  in  contravention  of 
the  law,  and  promises  a  reform.  The  council,  in  turn,  de- 
plores the  constantly  recurring  cases  of  wrong  and  suffering 
wrought  "regiae  subtilitatis  astu  vel  profanse  potestatis 
instinctu,"  and  proceeds  to  decree  that  in  future  no  freeman, 
noble,  or  priest  shall  be  tortured  unless  regularLy  accused 
or  indicted,  and  properly  tried  in  public ;  and  this  decree 
duly  received  the  royal  confirmation.1 

As  the  Goths  emerge  again  into  the  light  of  history 
after  the  Saracenic  conquest,  we  find  these  ancient  laws 
still  in  force  among  the  descendants  of  the  refugees  who 
had  gathered  around  Don  Pelayo.  The  use  of  the  Latin 
tongue  gradually  faded  out  among  them,  and  about  the 
twelfth  or  thirteenth  century  the  Wisigothic  code  was 
translated  into  the  popular  language,  and  this  Romance 
version,  known  as  the  Fuero  Juzgo,  long  continued  the 
source  of  law  in  the  Peninsula.  In  this,  the  provisions  of 
the  early  Gothic  monarchs  respecting  torture  are  textually 
preserved,  with  two  trifling  exceptions  which  may  reason- 
ably be  regarded  as  scarcely  more  than  mere  errors  of 
copyists.3  Torture  was  thus  maintained  in  Spain  as  an 
unbroken  ancestral  custom,  and  when  Alfonso  the  Wise, 
about  the  middle  of  the  thirteenth  century,  attempted  to 
revise  the  jurisprudence  of  his  dominions,  in  the  code 
known  as  Las  Siete  Partidas  which  he  promulgated,  he 
only  simplified  and  modified  the  proceedings,  and  did  not 
remove  the  practice.     Although  he  proclaimed  that  the 

1  Concil.  Toletan.  XIII.  ann.  683,  can.  ii. 

2  See  the  Fuero  Juzgo,  Lib.  i.  Tit.  iii.  1.  4;  Tit.  iv.  1.  4.— Lib.  ill.  Tit.  iv. 
11.  10,  11.— Lib.  vi.  Tit.  i.  11.  2,  4,  5.— Lib.  vn.  Tit.  i.  1.  1  ;  Tit.  vi.  1.  1. 
The  only  points  in  which  these  vary  from  the  ancient  laws  are  that  in  Lib. 
vi.  Tit.  i.  1.  2,  adultery  is  not  included  among  the  crimes  for  suspicion  of 
which  nobles  can  be  tortured,  and  that  the  accuser  is  not  directed  to  con- 
duct the  torture.  In  Lib.  vu.  Tit.  i.  1.  ],  also,  the  informer  who  fails  to 
convict  is  condemned  only  in  a  single  fine,  and  not  ninefold ;  he  is,  however, 
as  in  the  original,  declared  infamous,  as  a  ladro ;  if  a  slave,  the  penalty  is 
the  same  as  with  the  Wisigoths. 


SPAIN.  814 

person  of  man  is  the  noblest  thing  of  earth — u  La  persona 
del  home  es  la  mas  nol>l$  eosa  del  niiindo"1 — he  held  tliat 
stripes  and  other  torture  inflicted  judicially  were  no  dis- 
honor, even  to  Spanish  sensitiveness.-  Though,  moreover, 
he  declared  that  hidden  crimes  were  often  discovered  by 
means  of  torture  when  no  other  mode  was  available,1  still 
he  could  not  shut  hie  eyes  to  the  perilous  nature  of  such 
testimony,  and  he  decreed  that  no  confession  extorted  by 
torture,  or  by  the  fear  of  dishonor  or  death,  had  any  valid- 
ity.1 To  reconcile  the  irreconcilable,  therefore,  he  adopted 
an  expedient  which  subsequently  became  almost  universal 
throughout  Europe.  After  confession  under  torture,  the 
prisoner  was  remanded  to  his  prison.  On  being  subse- 
quently brought  before  the  judge,  he  was  again  interro- 
gated, when,  if  he  persisted  in  his  confession,  he  was 
condemned.  If  he  recanted,  he  was  again  tortured;  and, 
if  the  crime  was  grave,  the  process  could  be  repeated  a 
third  time:  but,  throughout  all,  he  could  not  be  convicted 
unless  he  made  a  free  confession  apart  from  the  torture. 
Even  after  conviction,  moreover,  if  the  judge  found  reason 
to  believe  that  the  confession  was  the  result  of  fear  of  the 
torture,  or  of  rage  at  being  tortured,  or  of  insanity,  the 
prisoner  was  entitled  to  an  acquittal.5  Evidently,  there 
was  little  real  confidence  reposed  in  the  procedure,  and  j^et 
this  want  of  faith  only  doubled  or  trebled  its  severity. 
Alfonso's  admiration  of  the  Roman  law  led  him  to  bor- 

1  Partidas,  P.  vn.  Tit.  i.  1.  26.  -  Ibid.  P.  vn.  Tit.  ix.  1.  16. 

3  Car  por  los  tormentos  saben  los  jndgadores  mucbas  veces  la  verdad  de 
los  malos  fechos  encubiertos,  que  non  se  podrian  saber  dotra  guisa. — Ibid. 
P.  vn.  Tit.  xxx.  1.  1. 

*  Por  premia  de  tormentos  6  feridas,  6  por  miedo  de  niuerte  6  de  deshonra 
que  quieren  facer  d  los  homes,  conoscen  a-  las  vegadas  algunas  casas  que  de 
su  grado  non  las  conoscerien  :  e  por  ende  decimos  que  la  conoscencia  que 
fuere  fecba  en  alguna  destas  maneras  que  non  debe  valer  nin  empesce  al  que 
la  face.— Ibid.  P.  in.  Tit.  xiii.  1.  5. 

4  Ibid.  P.  vn.  Tit.  xxx.  1.  4. — Porque  la  conoscencia  que  es  fecha  en  el 
tormento,  si  non  fuere  confirmada  despues  sin  premia,  non  es  valedera. 

27 


314  TORTURE. 

row  much  from  it  rather  than  from  the  Gothic  code,  though 
both  are  represented  in  the  provisions  which  he  established. 
Thus,  except  in  accusations  of  treason,  no  one  of  noble 
blood  could  be  tortured,  nor  a  doctor  of  laws  or  other 
learning,  nor  a  member  of  the  king's  council,  or  that  of 
any  city  or  town,  except  for  official  forgery,  nor  a  pregnant 
woman,  nor  a  child  under  fourteen  years  of  age.1  So,  when 
several  accomplices  were  on  trial,  the  torturer  was  directed 
to  commence  with  the  youngest  and  worst  trained,  as  the 
truth  might  probably  be  more  readily  extracted  from  him.3 
The  provision,  also,  that  when  a  master,  or  mistress,  or 
one  of  their  children  was  found  dead  at  ■  home,  all  the' 
household  slaves  were  liable  to  torture  in  the  search  for 
the  murderer,  bears  a  strong  resemblance  to  the  cruel  law 
of  the  Romans,  which  condemned  them  to  death  in  case 
the  murderer  remained  undiscovered.3 

The  regulations  concerning  the  torture  of  slaves  are 
founded,  with  little  variation,  on  the  Roman  laws.  Thus 
the  evidence  of  a  slave  was  only  admissible  under  torture, 
and  no  slave  could  be  tortured  to  prove  the  guilt  of  a 
present  or  former  owner,  nor  could  a  freedman,  in  a  case 
concerning  his  patron,  subject  to  the  usual  exceptions 
which  we  have  already  seen.  The  excepted  crimes  enu- 
merated by  Alfonso  are -seven,  viz:  adultery,  embezzle- 
ment of  the  royal  revenues  by  tax  collectors,  high  treason, 
murder  of  a  husband  or  wife  by  the  other,  murder  of  a 
joint  owner  of  a  slave  by  his  partner,  murder  of  a  testator 
by  a  legatee,  and  coining.     With  the  slave,  as  with  the 

1  Partidas,  P.  II.  Tit.  xxi.  1.  24.  Except  the  favor  shown  to  the  learned 
professions,  "per  honra  de  la  esciencia,"  which  afterwards  became  general 
throughout  Europe,  these  provisions  may  all  be  found  in  the  Roman  law. — 
Const.  4  Cod.  ix.  viii.  ;  L.  3  Dig.  xlviii.  xix.  ;  L.  10  Dig.  xlviii.  xviii.  j 
Const.  11  Cod.  ix.  xli. 

2  Partidas,  P.  vu.  Tit.  xxx.  1.  5. — Imitated  from  L.  18  Dig.  xlviii. 
xviii. 

3  Partidas,  P.  Til.  Tit.  xxx.  1.  7.  Cf.  Tacit.  Annal   xiv.  xliii.-xlv. 


SPAIN.  315 

iVcvinnn.'nll  testimony  under  torture  required  firabeeqnent 
confirmation,1 

There  is  one  noteworthy  innovation,  however,  in  Hie 
Partidas,  which  was  subsequently  introdnoed  widely  into 
the  torture  codes  of  Europe,  and  which,  in  theory  at  least, 
greatly  extended  their  sphere  of  action.  This  was  the  lia- 
bility of  freemen  as  witnesses.  "When  a  man's  evidence 
was  vacillating  and  contradictor}7",  so  as  to  afford  reason- 
able suspicion  that  he  was  committing  perjury,  all  criminal 
judges  were  empowered  to  subject  him  to  torture,  so  as  to 
ascertain  the  truth,  provided  always  that  he  was  of  low 
condition,  and  did  not  belong  to  the  excepted  classes.8 

With  all  this,  there  are  indications  that  Alfonso  de- 
signed rather  to  restrict  than  to  extend  the  use  of  torture, 
and,  if  his  general  instructions  could  have  been  enforced, 
there  must  have  been  little  occasion  for  its  employment 
under  his  code.  In  one  passage,  he  directs  that  when  the 
evidence  is  insufficient  to  prove  a  charge,  the  accused,  if 
of  good  character,  must  be  acquitted ;  and  in  another,  he 
orders  its  application  only  when  common  report  is  ad- 
verse to  a  prisoner,  and  he  is  shown  to  be  a  man  of  bad 
repute.3  Besides,  an  accuser  who  failed  to  prove  his  charge 
was  alwaj-s  liable  to  the  lex  taliojiis,  unless  he  were  prose- 
cuting for  an  offence  committed  on  his  own  person,  or  for 
the  murder  of  a  relative  not  more  distant  than  a  brother  or 
sister's  child.4  The  judge,  moreover,  was  strictly  enjoined 
not  to  exceed  the  strict  rules  of  the  law,  nor  to  carry  the 
torture  to  a  point  imperilling  life  or  limb.  If  he  deviated 
from  these  limits,  or  acted  through  malice  or  favoritism, 
he  was  liable  to  a  similar  infliction  on  his  own  person,  or 
to  a  penalty  greater  than  if  he  were  a  private  individual.5 

1  Partidas,  P.  vn.  Tit.  xxx.  1.  16. 

9  Ibid.  P.  in.  Tit.  xvi.  1.  43.— P.  vn.  Tit.  xxx.  1.  8. 

3  Partidas,  P.  vn.  Tit.  i.  1.  26,  "  home  mal  enfamado."— P.  vn.  Tit.  xxx. 
1.  3,  "  Et  si  fuere  home  de  mala  fame  0  vil." 

4  Ibid.   P.  vn.  Tit.  i.  I.  26. 

6  Ibid.  P.  vn.  Tit.  xxx.  1.  4  ;  Tit.  ix.  1.  16. 


316  TORTURE. 

The  liability  of  witnesses  was  further  circumscribed  by 
the  fact  that  in  cases  involving  corporal  punishment,  no 
one  could  be  forced  to  bear  testimony  who  was  related  to 
either  of  the  parties  as  far  as  the  fourth  degree  of  consan- 
guinity, in  either  the  direct  or  collateral  lines,  nor  even 
when  nearly  connected  by  marriage,  as  in  the  case  of 
fathers-in-law,  step-children,  &C.1  Orders  to  inflict  torture, 
moreover,  were  one  of  the  few  procedures  which  could  be 
appealed  from  in  advance.3  Several  of  these  limitations 
became  generally  adopted  throughout  Europe.  We  shall 
see,  however,  that  they  afforded  little  real  protection  to  the 
accused,  and  it  is  more  than  probable  that  they  received  as 
little  respect  in  Spain  as  elsewhere. 

There  were  many  varieties  of  torture  in  use  at  the  pe- 
riod, but  Alfonso  informs  us  that  only  two  were  commonly 
employecf,  the  scourge  and  the  strappado,  or  hanging  the 
prisoner  by  the  arms  while  his  back  and  legs  were  loaded 
with  heavy  weights.3  The  former  of  these,  however,  seems 
to  be  the  only  one  alluded  to  throughout  the  code. 

As  a  whole,  the  Partidas  were  too  elaborate  and  too 
much  in  advance  of  the  wants  of  the  age  to  be  successful 
as  a  work  of  legislation.  With  the  death  of  Alfonso  they 
became  discredited,  but  still  retained  a  certain  amount  of 
authority,  and,  a  hundred  years  later,  in  the  Ordenamiento 
di  Alcala  of  Alfonso  XI.,  issued  in  1348,  they  are  referred 
to  as  supplying  all  omissions  in  subsequent  codes.4 

It  is  probable  that,  in  his  system  of  torture,  Alfonso  the 
Wise  merely  regulated  and  put  into  shape  the  customs 
prevalent  in  his  territories,  for  the  changes  in  it  which 
occurred  during  the  succeeding  three  or  four  centuries  are 
merely  such  as  can  be  readily  explained  by  the  increasing 
influence  of  the  revived  Roman  jurisprudence,  and  the  intro- 
duction of  the  doctrines  of  the  Inquisition  with  respect  to 

1  Partidas,  P.  vn.  Tit.  xxx.  1.  9. 

2  Ibid.  P.  m.  Tit.  xxiii.  1.  13. 

3  Ibid.  P.  vn.  Tit.  xxx.  1.  1. 

4  Ordenamiento  di  Alcala,  Tit.  xxviii.  1.  1. 


SPAIN.  :J17 

criminal  procedures.  Iii  the  linal  shape  which  the  adminis- 
tration of  torture  assumed  in  Spain,  as  described  by  Yilla- 
diego,  an  eminent  legist  writing  aboni  the  year  L60O,  it  was 
only  employed  when  the  proof  was  strong  and  yet  not  suffi- 
cient for  conviction.  No  allusion  is  made  to  the  torture  of 
witnesses.  The  system  of  repeating  the  torture  on  succes- 
sive days,  if  the  accused  recanted  during  the  interval,  had 
apparently  fallen  into  desuetude,  for  Villadiego  condemns 
the  cruelty  of  some  judges  who  divide  the  torture  into 
three  days  in  order  to  render  it  more  effective,  since,  after 
a  certain  prolongation  of  torment,  the  limbs  begin  to  lose 
their  sensibility,  which  is  recovered  after  an  interval,  and 
on  the  second  and  third  da}^s  they  are  more  sensitive  than 
at  first.  This  he  pronounces  rather  a  repetition  than  a 
continuation  of  torture,  and  repetition  was  illegal  unless 
rendered  necessary  by  the  introduction  of  new  testimony. 
As  in  the  thirteenth  century,  nobles,  doctors  of  laws,  preg- 
nant women,  and  children  under  fourteen  were  not  liable, 
except  in  cases  of  high  treason  and  some  other  heinous 
offences,  among  which  the  bigotry  of  the  age  had  introduced 
heresy.  The  clergy  also  were  now  exempted,  unless  pre- 
viously condemned  as  infamous,  and  advocates  engaged  in 
pleading  enjoyed  a  similar  privilege.  The  Partidas  allow 
torture  in  the  investigation  of  comparatively  trivial  offences, 
but  Tilladiego  states  that  it  should  only  be  employed  in 
the  case  of  serious  crimes,  entailing  bodily  punishment 
more  severe  than  the  torture  itself,  and  torture  was  worse 
than  the  loss  of  the  hands.  Thus  when  only  banishment, 
fines,  or  imprisonment  were  involved,  it  could  not  be  used. 
The  penalties  incurred  by  judges  for  its  excessive  or  im- 
proper application  were  almost  identical  with  those  pre- 
scribed by  Alfonso,  and  the  limitation  that  it  should  not 
be  allowed  to  endanger  life  or  limb  was  only  to  be  exceeded 
in  the  case  of  treason,  when  the  utmost  severity  was  per- 
missible. Many  varieties  were  in  use,  but  the  most  common 
were  the  strappado  and  pouring  water  down  the  throat ; 

27* 


318  TORTURE. 

but  when  the  accused  was  so  weak  as  to  render  these  dan- 
gerous, fire  was  applied  to  the  soles  of  the  feet ;  and  the  use 
of  the  scourge  was  not  unusual.  As  in  the  ancient  laws, 
the  owner  of  slaves  was  entitled  to  compensation  when  his 
bondmen  were  unjustly  tortured.  If  there  was  no  justifi- 
cation for  it,  he  was  reimbursed  in  double  the  estimated 
value  ;  if  the  judge  exceeded  the  proper  measure  of  torment, 
he  made  it  good  to  the  owner  with  another  slave.1 

In  turning  to  the  other  barbarian  races  who  inherited  the 
fragments  of  the  Roman  empire,  we  find  that  the  introduc- 
tion of  torture  as  a  recognized  and  legal  mode  of  investiga- 
tion was  long  delayed.  Under  the  Merovingians,  as  we 
have  seen,  its  employment,  though  not  infrequent,  was 
exceptional  and  without  warrant  of  law.  When  the  slow 
reconstruction  of  society  at  length  began,  its  first  faint 
trace  is  to  be  found  in  a  provision  respecting  the  crime  of 
sorcery  and  magic.  These  were  looked  upon  with  peculiar 
detestation,  as  unpardonable  offences  against  both  God 
and  man.  It  is  no  wonder  then  if  the  safeguards  which 
the  freeman  enjoyed  under  the  ordinary  modes  of  judicial 
procedure  were  disregarded  in  the  case  of  those  who  vio- 
lated every  law,  human  and  divine.  The  legislation  of 
Charlemagne,  indeed,  was  by  no  means  merciful  in  its  gen- 
eral character.  His  mission  was  to  civilize,  if  possible,  the 
savage  and  turbulent  races  composing  his  empire,  and  he 
was  not  over  nice  in  the  methods  selected  to  accomplish 
the  task.  Still,  he  did  not  venture,  even  if  he  desired,  to 
prescribe  torture  as  a  means  of  investigation,  except  in  the 
case  of  suspected  sorcerers,  for  whom,  moreover,  it  is 
ordered  indirectly  rather  than  openly .a    Yet,  by  this  time, 

1  Villadiego,  Gloss,  ad  Fuero  Juzgo,  Lib.  vi.  Tit.  i.  1.  2,  Gloss,  c,  d,  e,  f,  g. 
—Lib.  vi.  Tit.  i.  1.  5,  Gloss,  b,  c. 

2  Capit.  Carol.  Mag.  II.  ann.  805,  §  xxv.  (Baluz.).  No  other  interpretation 
can  well  be  given  of  the  direction  '*  diligentissime  examinatione  constrin- 
gantur  si  forte  confiteantur  malorura  quae  gesserunt.  Sed  tali  moderatione 
fiat  eadem  districtio  ne  vitam  perdant." 


Til  |     t'AIM.nVINGIANS.  &1D 

tlu  personal  inviolability  of  the  freeman  vaa  gone.  The 
Infliction  of  stripes  and  of  hideous  mutilations  is  frequently 
directed  in  the  Capitularies,  and  eTen  torture  and  banish- 
incut  for  life  are  prescribed  as  ■  ponishment  for  insulting 

bishops  and  priests  in  church.1 

This  apparent  inconsistency  is  easily  explicable.  Though 
there  was  no  theoretical  objection  to  torture  as  a  process 
of  investigation,  yet  there  was  no  necessity  for  its  employ- 
ment as  a  means  of  evidence.  That  the  idea  of  thus  using 
it  in  matters  of  great  moment  was  not  unfamiliar  to  the 
men  of  that  age  is  evident  when  we  find  it  officially  stated 
that  the  accomplices  of  Bernard,  King  of  Italy,  in  his 
rebellion  against  Louis-le-Debonnaire,  in  817,  on  their  cap- 
ture confessed  the  whole  plot  without  being  put  to  the  tor- 
ture.- Such  instances,  however,  were  purely  exceptional. 
In  ordinary  matters,  there  was  a  complete  system  of  attack 
and  defence  which  supplemented  all  deficiencies  of  testi- 
mony in  doubtful  cases.  Sacramental  purgation,  the  wager 
of  battle,  and  the  various  forms  of  vulgar  ordeals  were  not 
011I3*  primeval  customs  suited  to  the  feelings  and  modes  of 
thought  of  the  race,  but  they  were  also  much  more  in 
harmony  with  the  credulous  faith  inculcated  by  the  church, 
and  the  church  had  by  this  time  entered  on  the  career  of 
temporal  supremacy  which  gave  it  so  potential  a  voice  in 
fashioning  the  institutions  of  European  society.  For  all 
these,  the  ministrations  of  the  ecclesiastic  were  requisite, 
and  in  many  of  them  his  unseen  interference  might  prove 
decisive.  On  the  other  hand,  the  humane  precepts  which 
forbade  the  churchman  from  intervening  in  any  manner 
in  judgments  involving  blood  precluded  his  interference 
with  the  torture  chamber ;  and  in  fact,  while  torture  was 

1  Capitul.  Lib.  vi.  cap.  exxix.  Si  quis  episcopo  rel  aliis  ministris  intra 
ecclesiam  injuriam  fecerit,  jubemus  eum  tormentis  subjeetum  in  exilio  raori 
....   Sin  autein  contumeliam  tantura  fecerit,  tormentis  et  exilio  tradatur. 

*  Non  solum  se  tradunt  sed  ultro  etiam  non  admoti  quaestionibus  omnem 
technam  hujus  rebellionis  detegunt. — Goldast.  Constit.  Imp.  I.  151. 


320  TORTURE. 

yet  frequent  under  the  Merovingians,  the  canons  of  various 
councils  prohibited  the  presence  of  any  ecclesiastic  in  places 
where  it  was  administered.1  Every  consideration,  there- 
fore, would  lead  the  church  in  the  ninth  century  to  prefer 
the  milder  forms  of  investigation,  and  to  use  its  all-powerful 
influence  in  maintaining  the  popular  belief  in  them.  The 
time  had  not  yet  come  when,  as  we  shall  see  hereafter,  the 
church,  as  the  spiritual  head  of  feudal  Christendom,  would 
find  the  ordeal  unnecessary  and  torture  the  most  practi- 
cable instrumentality  to  preserve  the  purity  of  faith  and  the 
steadfastness  of  implicit  obedience. 

In  the  ninth  century,  moreover,  torture  was  incompatible 
with  the  forms  of  judicial  procedure  handed  down  as  relics 
of  the  time  when  every  freeman  bore  his  share  in  the  public 
business  of  his  sept.  Criminal  proceedings  as  yet  were 
open  and  public.  The  secret  inquisitions  which  afterwards 
became  so  favorite  a  system  with  lawyers  did  not  then 
exist.  The  mallum,  or  court,  was  perhaps  no  longer  held 
in  the  open  air,9  nor  were  the  freemen  of  the  district  con- 
strained as  of  old  to  be  present,3  but  it  was  still  free  to 

1  Non  licet  presbytero  nee  diacono  ad  trepalium  ubi  rei  torquentur  stare. 
— Concil.  Autissiodor.  arm.  578,  can.  xxxiii. 

Ad  locum  examinationis  reorum  nullus  clericorum  accedat. — Concil. 
Matiscon.  II.  ann.  585,  can.  xix. 

2  Under  Charlemagne  and  Louis-le-Debonnaire  seems  to  have  commenced 
the  usage  of  holding  the  court  under  shelter.  Thus  Charlemagne,  "  Ut  in  locis 
ubi  mallus  publicus  haberi  solet,  tectum  tale  constituatur  quod  in  hiberno 
et  in  aestate  observandus  esse  possit" — (Capit.  Carol.  Mag.  II.  ann.  809, 
§  xiii.).  See  also  Capit.  I.  eod.  ann.  §  xxv.  Louis-le-Debonnaire  prohibits 
the  holding  of  courts  in  churches,  and  adds  "  Volumus  utique  ut  domus  a 
comite  in  locum  ubi  mallum  tenere  debet  construatur,  ut  propter  calorem 
solis  et  pluviam  publica  utilitas  non  remaneat." — (Capit.  Ludov.  Pii.  I.  ann. 
819,  §  xiv.) 

3  In  769,  we  find  Charlemagne  commanding  the  presence  of  all  freemen  in 
the  general  judicial  assembly  held  twice  a  year,  "  Ut  ad  mallum  venire  nemo 
tardet,  unum  circa  aestatem  et  alterum  circa  autumnum."  At  others  of  less 
importance,  they  were  only  bound  to  attend  when  summoned,  "  Ad  alia  vero, 
si  necessitas  fuerit,  vel  denunciatio  regis  urgeat,  vocatus  venire  nemo  tardet."' 
—(Capit.  Carol.  Mag.  ann.  769,  §  xii.) 


FKUDALISM.  821 

every  one.  The  acrnscr  and  his  witnesses  were  confronted 
with  the  accused,  and  the  eriminal  must  be  present  when 
his  sentence  was  pronouneed.1  The  purgatorial  oath  was 
administered  at  the  altar  ofthe  perish  church;  the  ordeal 
was  a  public  spectacle ;  and  the  judicial  duel  drew  thousands 
of  witnesses  as  eager  for  the  sight  of  blood  as  the  Roman 
plebs.  These  were  all  ancestral  customs,  inspiring  im- 
plicit reverence,  and  forming  part  of  the  public  life  of  the 
community.  To  substitute  for  them  the  gloomy  dungeon 
through  whose  walls  no  echo  of  the  victim's  screams  could 
filter,  where  impassible  judges  coldly  compared  the  inco- 
herent confession  wrung  out  by  insufferable  torment  with 
the  anonymous  accusation  or  the  depositions  of  unknown 
witnesses,  required  a  total  change  in  the  constitution  of 
society. 

The  change  was  long  in  coming.  Feudalism  arose  and 
consolidated  its  forces  on  the  ruins  of  the  Carlovingian  em- 
pire without  altering  the  principles  upon  which  the  earlier 
procedures  of  criminal  jurisdiction  had  been  based.  As 
the  local  dignitaries  seized  upon  their  fiefs  and  made  them 
hereditary,  so  they  arrogated  to  themselves  the  dispensa- 
tion of  justice  which  had  formerly  belonged  to  the  central 
power,  but  their  courts  were  still  open  to  all.  Trials  were 
conducted  in  public  upon  well-known  rules  of  local  law 
and  custom ;  the  fullest  opportunities  were  given  for  the 
defence;  and  a  denial  of  justice  authorized  the  vassal  to 
renounce  the  jurisdiction  of  his  feudal  lord  and  seek  a 
superior  court. 

In  809,  he  desired  that  none  should  be  forced  to  attend  unless  he  had  busi- 
ness, "Ut  nullus  ad  placitum  venire  cogatur,  nisi  qui  caussam  habet  ad 
quajrendam." — (Capit.  I.  ann.  809,- §  xiii.) 

In  819,  Louis  ordered  that  the  freemen  should  attend  at  least  three  courts 
a  year,  "et  nullus  eos  amplius  placita  observare  compellat,  nisi  forte  quilibet 
aut  accusatus  fuerit,  aut  aliuin  accusaverit,  aut  ad  testimonium  perhibendum 
vocatus  fuerit." — (Capit.  Ludov.  Pii.  V.  ann.  819,  §  xiv.) 

1  Placuit  ut  adversus  absentes  non  judicetur.  Quod  si  factus  fuerit  pro- 
lata  sententia  non  valebit. — Capitul.  Lib.  v.  §  cccxi. 


322  TORTURE. 

Still,  as  under  the  Merovingians,  torture,  though  un- 
recognized by  law,  was  occasionally  employed  as  an  extra- 
ordinary element  of  judicial  investigation,  as  well  as  a 
means  of  punishment  to  gratify  the  vengeance  of  the  irre- 
sponsible and  cruel  tyrants  who  ruled  with  absolute  sway 
over  their  petty  lordships.  A  few  such  instances  occur  in 
the  documents  and  chronicles  of  the  period,  but  the  terms 
in  which  they  are  alluded  to  show  that  they  were  regarded 
as  irregular. 

Thus,  it  is  related  of  Wenceslas,  Duke  of  Bohemia,  in 
the  early  part  of  the  tenth  century,  that  he  destroyed  the 
gibbets  and  fearful  implements  of  torture  wherewith  the 
cruelty  of  his  judges  had  been  exercised,  and  that  he  never 
allowed  them  to  be  restored.1  An  individual  case  of  torture 
which  occurred  in  1017  has  chanced  to  be  preserved  to  us 
by  its  ending  in  a  miracle,  and  being  the  occasion  of  the 
canonization  of  a  saint.  A  pious  pilgrim,  reputed  to  belong 
to  the  royal  blood  of  Scotland,  while  wandering  on  the 
marches  between  the  Bavarians  and  the  Moravians,  was 
seized  by  the  inhabitants  on  suspicion  of  being  a  spy,  and, 
to  extort  a  confession,  was  exposed  to  a  succession  of  tor- 
ments which  ended  by  hanging  him  on  a  withered  tree  until 
he  died.  The  falsity  of  the  accusation  and  the  sanctity  of 
the  victim  were  manifested  by  the  uninterrupted  growth  of 
his  hair  and  nails  and  the  constant  flowing  of  blood  from  a 
wound,  while  the  dead  tree  suddenly  put  forth  leaves  and 
flowers.  Margrave  Henry  of  Bavaria  had  him  reverently 
buried,  and  he  was  duly  enrolled  in  the  catalogue  of  saints.3 
In  the  celebrated  case,  also,  of  the  robbery  of  the  church 

1  Regnabat  autem  in  Praga  Wenezlaus  Deo  et  hominibus  acceptus,  qui 
inter  caetera  quae  de  eo  praedicantur,  mirabilia  tormentorum  genera  et  pati- 
bula  suspendiis  hominum  praeparata  dirui  fecit,  ne  immanitas  judicum  ex- 
cresceret,  nee  reparari  suo  tempore  permisit  — Annalist.  Saxo  ann.  928. 

3  In  Bavariorum  confinia  atque  Maravensium  quidain  peregrinus,  nomine 
Colomannus,  ab  incolis,  quasi  speculator  esset,  capitur,  et  ad  professionem 
culpae,  quam  non  meruit,  diris  castigationibus  compellitur,  etc. — Dithmari 
Chron.  Lib.  vn.  ad  fin. 


THE    TWELFTH    CENTIKV.  828 

of  Laos,  about  the  year  1100,  the  suspected  thief  was,  by 
direction  of  the  bishop,  basted  with  hot  lard,  In  order  to 
extort  :i  confession,1  and  though  this  whs  unsuccessful,  a1 
perseverance  in  the  effort  anally  effected  its  purpose.' 

These  arc  evidently  rather  sporadic  and  exceptional  c 
than  Indications  of  any  systematic  introduction  of  the  prac- 
tice* A  more  significant  allusion,  however,  is  found  in  the 
reproof  administered,  about  1125,  by  Ifildebert,  Bishop  of 
le  Mans,  to  one  of  his  priests,  who  had  been  concerned  in 
the  torture  of  a  suspected  thief,  for  the  purpose  of  extract- 
ing a  confession.  Hildebert  argues  that  the  infliction  of 
torture  for  confession  is  a  matter  for  judicial  decision  and 
not  of  church  discipline,  and  therefore  not  fit  for  a  clerk  to 
be  engaged  in.3  This  would  seem  to  show  that  it  occasion- 
al \y  was  a  recognized  means  of  proof  in  the  lay  tribunals  of 
tin1  period,  though  as  yet  not  favored  by  the  church.  If  so, 
no  record  of  its  introduction  or  evidence  of  its  customary 
use  has  been  preserved  to  us,  though  there  is  abundant 
evidence  of  its  employment  as  a  punishment  and  for  the 
extortion  of  money. 

As  a  punishment  legally  inflicted,  we  find  it  prescribed, 
in  1168,  by  Frederic  Barbarossa  in  cases  of  petty  thefts,4 
and  in  the  next  century  by  Frederic  II.  as  a  penalty  for 
high  treason.6  Special  cases,  too,  may  be  instanced,  where 
its  infliction  on  a  large  scale  shows  that  the  minds  of  men 
were  not  unfamiliar  with  its  use.     Thus  when,  in  1125,  the 

1  Ille  nudatum  terraaque  prostratum  atque  ligatum,  lardo  calido  fecit  per- 
fundi,  sed  nihil  extorquere  potuit. — Heruiannus  de  S.  Mariae  Lauden.  Mirac. 
(Jureti  Observat.  in  Ivon.  Epist.  lxxiv.). 

2  Guibert.  Noviogent.  de  Vita  Sua,  cap.  xvi. 

3  Reos  torraentis  afficere  vel  suppliciis  extorquere  confessionem  censura 
curia1  est  non  ecclesiae  disciplina.  Unde  et  ab  ejus  animadversione  abstinere 
debuisti  quern  pecuniam  tuam  furto  suspicaris  asportasse ;  neque  enim  car- 
nifex  es  sed  sacrifex. — Hildebert.  Cenoman.  Epist.  xxx. 

4  Si  quis  quinque  solidos  valens  aut  plus  fuerit  furatus  laqueo  suspendatur  : 
si  minus,  scopis  et  forcipe  excorietur  et  tundatur. — Feudor.  Lib.  II.  Tit. 
xxvii.  $  8. 

1  Fred.  II.  Lib.  Rescript.  II.  §§  1,  6.     (Goldast,  Constit.  Imp.  li.  54.) 


324  TORTURE. 

inhabitants  of  Erfurt  were  guilty  of  some  outrages  on  the 
imperial  authority,  and  the  town  was  besieged  and  captured 
by  the  Emperor  Lothair,  the  chronicler  relates  that  large 
numbers  of  the  citizens  were  either  killed,  blinded,  or  tor- 
tured in  various  ways  by  the  vindictive  conqueror.1 

So  summary  and  effective  a  mode  of  forcing  the  weak 
and  unprotected  to  ransom  themselves  was  not  likely  to  be 
overlooked  in  those  ages  of  violence,  and  though  the  extra- 
judicial use  of  torture  is  foreign  to  our  purpose,  yet,  as 
showing  how  men  educated  themselves  in  its  employment, 
it  may  be  worth  while  to  allude  briefly  to  this  aspect  of 
the  subject.  Thus  Duke  Swantopluck  Of  Bohemia,  in  a 
marauding  expedition  into  Hungary  in  1108,  caused  to  be 
racked  or  put  to  death  all  prisoners  who  could  not  purchase 
escape  by  heavy  ransoms.51  At  the  same  period,  Germany 
is  described  to  us  by  an  eyewitness  as  covered  with  feudal 
chieftains  who  lived  a  life  of  luxury  by  torturing  the  mis- 
erable wretches  that  could  scarce  obtain  bread  and  water 
for  their  own  existence.3  In  England,  the  fearful  anarchy 
which  prevailed  under  King  Stephen  encouraged  a  similar 
condition  of  affairs.  The  baronial  castles  which  then 
multiplied  so  rapidly  became  mere  dens  of  robbers  who 
ransacked  the  country  for  all  who  had  the  unfortunate 
reputation  of  wealth.  From  these  they  extracted  the  last 
penny  by  tortures ;  and  the  chronicler  expatiates  on  the 
multiplicity  and  horrid  ingenuity  of  the  torments  devised — 
suspension  by  the  feet  over  slow  fires;  hanging  by  the 
thumbs ;  knotted  ropes  twisted  around  the  head ;  crucet- 
houses,  or  chests  filled  with  sharp  stones,  in  which  the 
victim  was  crushed ;  sachentages,  or  frames  with  a  sharp 

1  Trucidatis  aliis,  aliis  caecatis,  nonnullis  diversis  tormentorurn  generibus 
excruciatis,  multisque  per  diversis  fugientibus. — Erphurdianus  Variloquus 
arm.  1125. 

2  Alios  interfeci  jussit,  alios  in  eculeo  suspensos,  paucis  vero,  accepta 
magna  pecunia,  vitam  concessit. — Cosmae  Pragens.  Lib.  in.  ann.  1108. 

3  Ab  his  qui  pane  solo  et  aqua  victitare  solebant,  delicias  sibi  ministrari 
tormentis  exigebant. — Annalist.  Saxo  ann.  1123. 


DISAPPROVED    BY    THE    CHURCH.  325 

iron  collar  preventing  the  wearer  from  sitting,  lying,  or 
sleeping;  dungeons  filled  with  toads  and  adders;  slow 
starvation,  &c.  &c.1  Such  experiments  were  a  fitting  educa- 
tion for  the  times  that  were  to  come. 

In  all  this,  however,  there  is  no  evidence  of  the  revival 
of  torture  as  a  means  of  legal  investigation.  The  commu- 
nity was  satisfied  with  the  old  barbaric  forms  of  trial,  and 
tin-  church,  still  true  to  its  humanizing  instincts,  lost  no 
opportunity  of  placing  the  seal  of  its  disapprobation  on 
the  whole  theory  of  extorting  confessions.  The  great  name 
of  Gregory  I.  was  on  record,  as  early  as  the  sixth  century, 
denouncing  as  worthless  a  confession  extorted  by  incarce- 
ration and  hunger.3  When  Nicholas  I.,  who  did  so  much 
to  build  up  ecclesiastical  power  and  influence,  addressed, 
in  866,  his  well-known  epistle  to  the  Bulgarians  to  aid  and 
direct  them  in  their  conversion  to  the  true  faith,  he  recites 
that  he  is  told  that  in  cases  of  suspected  theft,  their  courts 
endeavor  to  extort  confession  by  stripes,  and  by  pricking 
with  a  pointed  iron.  This  he  pronounces  to  be  contrary 
to  all  law,  human  and  divine,  for  confessions  to  be  valid 
should  be  spontaneous;  and  he  argues  at  some  length  on 
the  uncertainty  of  the  system  of  torture,  and  the  injustice 
to  which  it  leads,  concluding  with  a  peremptory  prohibition 
of  its  continuance.3 

In  the  first  half  of  the  same  century,  the  manufacturers 

1  Anglo-Saxon  Chronicle,  ann.  1137. 

a  Si  tamen  eamdem  confessionem  subtilitas  examinations  ex  occultis 
elicerit,  et  non  afflictio  vehemens  extorqueret ;  qua}  frequenter  hoc  agit  ut 
noxios  se  fateri  cogantur  etiam  innoxii.  Nam  postquam  praefatus  episcopus, 
ut  dicitur,  cruciari  custodia  cremarique  fame  se  asserit,  scire  debetis,  si  ita 
est,  utrum  noceat  si  sic  fuerit  extorta  confessio. — Gregor.  PP.  I.  Lib.  vui. 
Epist.  xxx. 

3  Nicolai  PP.  I.  Epist.  xcvii.  $  86.  Quam  rem  nee  divina  lex  nee  hu- 
maiia  prorsus  admittit,  cum  non  invita  sed  spontanea  debeat  esse  confessio 
....  Relinquite  itaque  talia,  et  quae  hactenus  insipientes  exercuistis,  me- 
dullitus  execramini,  quern  enim  fructum  habuistis  tunc  in  illis  in  quibus 
non  erubescitis? 

28 


326  TORTURE. 

of  the  False  Decretals  had  attributed  to  Alexander  I.  an 
epistle  designed  to  protect  the  church  from  pillage  and 
oppression,  in  which  that  pontiff  is  made  to  threaten  with 
infamy  and  excommunication  those  who  extort  confessions 
or  other  writings  from  ecclesiastics  by  force  or  fear,  and 
to  lay  down  the  general  rule  that  confessions  must  be 
voluntary  and  not  compulsory.1  On  the  authority  of  this, 
Ivo  of  Chartres,  at  the  commencement  of  the  twelfth  cen- 
tury, declares  that  men  in  holy  orders  cannot  be  forced 
to  confess  ;a  and  half  a  century  later,  Gratian  lays  down 
the  more  general  as  well  as  more  explicit  rule  that  no  con- 
fession is  to  be  extorted  by  the  instrumentality  of  torture.3 
This  position  was  consistently  maintained  until  the  revival 
of  the  Roman  law  familiarized  the  minds  of  men  with  the 
procedures  of  the  imperial  jurisprudence,  when  the  policy 
of  the  church  altered,  and  it  yielded  to  the  temptation  of 
obtaining  so  useful  a  means  of  reaching  and  proving  the 
otherwise  impalpable  crime  of  heresy. 

The  latter  half  of  the  twelfth  century  saw  the  study  of 
the  civil  law  prosecuted  with  intense  ardor,  and  in  the 
beginning  of  the  thirteenth,  Innocent  III.  struck  a  fatal 
blow  at  the  barbaric  systems  of  the  ordeal  and  sacramental 
compurgation  by  forbidding  the  rites  of  the  church  to  the 
one  and  altering  the  form  of  oath  customary  to  the  other. 
The  unreasoning  faith  which  had  reposed  confidence  in  the 
boiling  caldron,  or  the  burning  ploughshare,  or  the  trained 
champion  as  the  special  vehicle  of  Divine  judgment,  was 
fading  before  the  Aristotelian  logic  of  the  schools,  and  dia- 
lectical skill  could  not  but  note  the  absurdity  of  acquitting 

1  Pseudo-Alexand.  decret."  Omnibus  orthodoxis"  —  Confessio  vero  in 
talibus  non  compulsa  sed  spontanea  fieri  debet.  .  .  .  Confessio  enim  non 
extorqueri  debet  in  talibus,  sed  potius  sponte  profiteri,  pessimum  est  enim 
de  suspicione  aut  extorta  confessione  quemquam  judicare. 

2  Ministrorum  confessio  non  sit  extorta  sed  spontanea. — Ivon.  Panorm. 
iv.  cxviii. 

3  Quod  vero  confessio  cruciatibus  extorquenda  non  est. — Decreti  Caus.  xv. 
q.  6,  can.  1. 


INFLUENCE    OF    THE    ROMAN     LAW.  327 

i  culprit  because  be  could  beg  <>r  buy  two,  or  five,  or  eleven 
nuMi  to  swi-Mi-  to  their  belief  iii  his  oath  of  denial 

Yet  with  all  these  Influences  at  work,  the  ancestral  cus- 
toms maintained  their  ground  Long  and  stubbornly.     It  Is 

not  until  the  latter  half  of  the  thirteenth  century  that  the 
first  faint  traces  of  legalized  torture  are  to  be  found  in 
Franco,  at  whose  University  of  Paris  for  more  than  a 
hundred  years  the  study  of  the  Pandects  had  become  the 
absorbing  topic,  and  where  the  constantly  increasing  power 
of  the  crown  found  its  most  valuable  instruments  in  the 
civil  lawyers,  and  its  surest  weapon  against  feudalism  in 
the  extension  of  the  royal  jurisdiction.  In  Germany,  the 
progress  was  even  slower.  The  decline  of  the  central  au- 
thority, after  the  death  of  Frederic  Barbarossa,  rendered 
any  general  change  impossible,  and  made  the  absolutist 
principles  of  the  imperial  jurisprudence  especially  distaste- 
ful to  the  crowd  of  feudal  sovereigns,  whose  privileges 
were  best  supported  by  perpetuating  organized  anarchy. 
The  early  codes,  therefore,  the  Sachsenspiegel,  the  Schwa- 
benspiegel,  the  Kayser-Recht,  and  the  llichstich  Landrecht, 
which  regulated  the  judicial  proceedings  of  the  Teutonic 
nations  from  the  thirteenth  to  the  fifteenth  centuries,  seem 
to  know  no  other  mode  of  deciding  doubtful  questions  than 
sacramental  purgation  and  the  various  forms  of  ordeal. 
During  the  latter  portion  of  this  period,  it  is  true,  torture 
begins  to  appear,  but  it  is  as  an  innovation. 

The  first  indications  of  the  modern  use  of  torture  show 
distinctly  that  its  origin  is  derived  from  the  civil  law.  In 
the  Latin  kingdoms  of  the  East,  the  Teutonic  races  were 
brought  into  contact  with  the  remains  of  the  old  civiliza- 
tion, impressive  even  in  its  decrepitude.  It  was  natural 
that,  in  governing  the  motley  collection  of  Greeks,  Syri- 
ans, and  Franks,  for  whom  they  had  to  legislate,  they 
should  adopt  some  of  the  institutions  which  they  found 
in  force  amid  their  new  possessions,  and  it  is  only  sur- 
prising that  torture  did  not  form  a  more  prominent  feature 


328  TORTURE. 

in  their  code.  The  earliest  extant  text  of  the  Assises  de 
Jerusalem  is  not  older  than  the  thirteenth  century,  and  the 
blundering  and  hesitating  way  in  which  it  recognizes,  in  a 
single  instance,  the  use  of  torture  shows  how  novel  was  the 
idea  of  such  procedure  to  the  feudal  barons,  and  how  little 
they  understood  the  principles  governing  its  application. 
When  a  murderer  was  caught  in  the  act  by  two  witnesses,  he 
could  be  promptly  hanged  on  their  testimony,  if  the}'  were 
strangers  to  the  victim.  If,  however,  they  were  relatives, 
their  testimony  was  held  suspect,  and  the  confession  of  the 
accused  was  requisite  to  his  conviction.  To  obtain  this,  he 
was  subjected  to  torture  for  three  days ;  if  he  confessed,  he 
was  hanged ;  if  obdurate,  he  was  imprisoned  for  a  year  and  a 
day,  with  the  privilege  of  clearing  himself  during  that 
period  by  the  ordeal  of  the  red-hot  iron.  If  he  declined 
this,  and  if  during  his  confinement  no  additional  evidence 
was  procured,  he  was  acquitted  and  could  not  be  again 
appealed  for  the  murder.1 

This  shows  the  transition  state  of  the  question.  The 
criminal  is  caught  with  the  red  hand  and  the  evidence  of 
guilt  is  complete,  save  that  the  witnesses  may  be  interested  ; 
confession  thus  becomes  requisite,  yet  the  failure  to  extort 
it  by  the  most  prolonged  torment  does  not  clear  the 
accused ;  the  ordeal  is  resorted  to  in  order  to  supplement 
the  torture,  and  solve  the  doubts  which  the  latter  could  not 
remove;  and  finally,  the  criminal  is  absolved  though  he 
dare  not  trust  the  judgment  of  God,  and  though  the  uncer- 
tainties in  which  torture  had  left  the  case  are  not  removed. 

Italy  was  the  centre  from  which  radiated  the  influences 
of  the  Roman  law  throughout  Western  Europe,  and,  as 
might  be  expected,  it  is  to  Italy  that  we  must  look  for  the 
earliest  incorporation  of  torture  in  the  procedures  of 
modern  criminal  j  urisprudence.  Probably  the  first  instance 
of  its  use  is  to  found  in  the  legislation  of  Frederic  II.  for 

1  Assises  de  Jerusalem,  Baisse  Court,  cap.  cclix. 


IM'.VIVED     IN'     1  T  A  I.  I  .  :;-_)(.l 

hi-  Neapolitan  provinces,  promulgated  fa  L281;  and  the 

mode  in  which  it  is  prescribed  shows  tli:it  it  was  as  \ct   1  nit 

sparingly  employed.  As  Frederic  was  the  earliest  secular 
legislator  who  discountenanced  and  restricted  the  various 

forms  of  the  ordeal,  it  was  natural  that,  with  his  education 
and  temperament,  he  should  seek  to  replace  them  with  the 
system  of  the  Roman  codes  which  he  so  much  admired. 

When  a  secret  murder  or  other  heinous  crime  was  com- 
mit ted.  and  the  most  stringent  investigation  could  not  con- 
vict the  perpetrators,  if  the  weight  of  suspicion  fell  on  per- 
sons of  humble  station  and  little  consequence,  they  could 
be  tortured  for  confession.  If  no  torment  could  wring 
from  them  an  acknowledgment  of  guilt,  or  if,  as  often 
happened  ("prout  accidere  novimus  in  plerisque"),  their 
resolution  gave  way  under  insufferable  torment  and  they 
subsequently  recanted,  then  the  punishment,  in  the  shape 
of  a  fine,  was  inflicted  on  the  district  where  the  crime  had 
occurred.1  From  this  it  is  evident  that  torture  was  not 
exactl}T  a  novelty,  but  that  as  yet  it  was  only  ventured 
upon  with  the  lowest  and  most  unprotected  class  of  society, 
and  that  confession  during  its  infliction  was  not  regarded  as 
sufficient  for  conviction,  unless  subsequently  persisted  in. 

During  the  remainder  of  the  century,  the  statutes  of 
many  of  the  Italian  cities  show  the  gradual  introduction 
of  torture  to  replace  the  barbarian  processes  which  were 
not  indigenous,2  and  which  the  traditional  hate  of  the  Italian 
States  for  the  Tedeschi  was  not  likely  to  render  popular. 
That  by  the  middle  of  the  century,  indeed,  the  practical 
applications  of  torture  had  been  profoundly  studied  and 
were  thoroughly  understood  in  all  their  most  inhuman 
ramifications  is  sufficiently  evident  from  the  accounts  which 
we  possess  of  the  fearful  cruelties  habitually  practised  by 
petty  despots  such  as  Eccelino  di  Romano.3 

1  Constit.  Sicular.  Lib.  i.  Tit.  xxvii. 
9  Du  Boys,  Droit  Criminel  des  Peup.  Mod.  II.  405. 

3  Monach.  Paduan.  Chron.  Lib.  n.  ann.  1252-3  (Urstisii  Scrip.  Rer.  Ger- 

2S* 


330  TORTURE. 

About  this  time  we  also  find,  in  the  increasing  rigor  and 
gradual  systematizing  of  the  Inquisition,  an  evidence  of 
the  growing  disposition  to  resort  to  torture,  and  a  power- 
ful element  in  extending  and  facilitating  its  introduction. 
The  church  had  been  actively  engaged  in  discountenancing 
and  extirpating  the  ordeal,  and  it  now  threw  the  immense 
weight  of  its  authority  in  favor  of  the  new  process  of  ex- 
torting confessions.  When  Frederic  II.,  in  1221,  issued 
from  Padua  his  three  constitutions  directed  against  heresy, 
cruel  and  unsparing  as  they  were,  they  contained  no  indica- 
tion that  torture  was  even  contemplated  as  a  mode  of  inves- 
tigation. In  fact,  suspected  parties,  against  whom  insuffi- 
cient evidence  was  brought,  were  directed  to  prove  their 
innocence  by  some  fitting  mode  of  purgation.1  In  1252, 
however,  when  Innocent  IV.  issued  his  elaborate  instruc- 
tions for  the  guidance  of  the  Inquisition  in  Tuscany  and 
Lombardy,  he  ordered  the  civil  magistrates  to  extort  from 
all  heretics  by  torture  not  merely  a  confession  of  their  own 
guilt,  but  an  accusation  of  all  who  might  be  their  accom- 
plices ;  and  this  derives  significance  from  his  reference  to 
similar  proceedings  as  customary  in  trials  of  thieves  and 
robbers.3  It  shows  the  progress  made  during  the  quarter 
of  the  century,  and  the  high  appreciation  entertained  by 
the  church  for  the  convenience  of  the  new  system. 

As  yet,  however,  this  did  not  extend  beyond  Italy.   There 

man.  pp.  594-5). — Quotidie  diversis  generibus  tormentorum  indiffenter  tam 
inajores  quam  minores  a  carnificibus  necabuntur.  Voces  terribiles  claman- 
tum  in  tormentis  die  noctuque  audiebantur  de  altis  palatiis.  .  .  .  Quotidie 
pine  labore,  sine  conscientiae  remorsione  magna  torinenta  et  inexcogitata 
corporibus  hominum  infligebat,  etc. 

1  Congrua  purgatione. — Goldast.  Constit.  Imp.  I.  293-5. 

2  Teneatur  praeterea  potestas  seu  rector  omnes  haereticos  quos  captos 
habuerit,  cogere  citra  membri  diminutionem  et  mortis  periculum,  tanquam 
vere  latrones  et  bomicidas  animarum  et  fures  sacramentorura  Dei  et  fidei 
Christiana?,  errores  suos  expresse  fateri  et  accusare  alios  haereticos  quos 
sciunt,  et  bona  eorum,  et  credentes  et  receptatores  et  defensores  eorum,  sicut 
coguntur  fures  et  latrones  rerum  temporalium  accusare  suos  complices  et  fa- 
teri maleficia  quae  fecerunt. — Innocent.  IV.  Leg.  et  Const,  contra  Haeret.  §  26. 


INFLUENCE    OF    T  Hi:     [NQUI8ITION.  831 

hi  extant  a  tract,  written  not  long  after  this  time,  contain- 
ing very  minute  instructions  .-is  to  the  established  mode  of 
dealing  with  the  sect  of  Albigensee  known  as  the  •*  Poor 
Men  of  Lj-ons."  It  gives  directions  to  break  down  their 
Strength  and  overcome  their  fortitude  by  solitary  confine- 
ment, starvation,  and  terror,  but  it  abstains  from  recom- 
mending the  infliction  of  absolute  and  direct  torture,  while 
its  details  are  so  full  that  the  omission  is  suflicient  proof 
that  such  measures  were  not  then  customary.1 

The  whole  system  of  the  Inquisition,  however,  was  such 
:i  s  to  render  the  resort  to  torture  inevitable.  Its  proceedings 
were  secret ;  the  prisoner  was  carefully  kept  in  ignorance 
of  the  exact  charges  against  him,  and  of  the  evidence  upon 
which  they  were  based.  He  was  presumed  to  be  guilty,  and 
his  judges  bent  all  their  energies  to  force  him  to  confess. 
To  accomplish  this,  no  means  were  too  base  or  too  cruel. 
According  to  the  tract  just  quoted,  pretended  sympathizers 
were  to  be  let  into  his  dungeon,  whose  affected  friendship 
might  entrap  him  into  an  unwary  admission;  officials  armed 
with  fictitious  evidence  were  directed  to  frighten  him  with 
assertions  of  the  testimony  obtained  against  him  from  sup- 
posititious witnesses ;  and  no  resources  of  fraud  or  guile 
were  to  be  spared  in  overcoming  the  caution  and  resolution 
of  the  poor  wretch  whose  mind,  as  we  have  seen,  had  been 
carefully  weakened  by  solitude,  suffering,  hunger,  and  terror. 
From  this  to  the  rack  and  estrapade  the  step  was  easily 
taken,  and  was  not  long  delayed.  In  1301,  we  find  even 
Philippe-le-Bel  protesting  against  the  cruelty  of  the  In- 
quisition, and  interfering  to  protect  his  subjects  from  the 
refinements  of  torture  to  which,  on  simple  suspicion  of 
heresy,  unfortunate  victims  were  habitually  exposed.3    Yet 

1  Tract,  de  ITajres.  Paup.  de  Lugd.  (Martene  et  Durand  V.  1787).  In  the 
tract,  Frederic  II.,  who  died  in  1250,  is  spoken  of  ns  "quondam  imperator." 

-  Clamor  validus  et  insinuatio  luctuosa  fidelium  subditorum  .  .  .  processus 
suos  in  inquisitionis  negotio  a  captionibus,  quaestionibus  et  excogitatis  tor- 
mentis  incipiens  personas  quas  pro  libito  asserit  haeretica  labe  notatas,  abne- 


332  TORTURE. 

when,  a  few  years  later,  the  same  monarch  resolved  upon 
the  destruction  of  the  Templars,  he  made  the  Inquisition 
the  facile  instrument  to  which  he  resorted,  as  a  matter  of 
course,  to  extort  from  De  Molay  and  his  knights,  with 
endless  repetition  of  torments,  the  confessions  which  were 
to  recruit  his  exhausted  treasury  with  their  broad  lands 
and  accumulated  riches.1 

The  history  of  the  Inquisition,  however,  is  too  large  a 
subject  to  be  treated  here  in  detail,  and  it  can  only  be 
alluded  to  for  the  purpose  of  indicating  its  influence  upon 
secular  law.  That  influence  was  immense.  The  legists  who 
were  endeavoring  to  eradicate  the  feudal  customs  could  not 
expect  the  community  to  share  their  admiration  of  the 
Roman  law,  and  naturally  grasped  with  eagerness  the  ad- 
vantage offered  them  in  adducing  the  example  of  ecclesi- 
astical institutions.  In  founding  their  new  system,  they 
could  thus  hardly  avoid  copying  that  which  presented  itself 
Under  all  the  authority  of  an  infallible  church,  and  which 
had  been  found  to  work  so  successfully  in  unveiling  the 
most  secret  of  hidden  crimes,  those  of  faith  and  belief. 

About  the  time  when  Innocent  IV.  was  prescribing  tor- 
ture in  Italy,  we  find  the  first  evidence  of  its  authoritative 
use  in  France  as  an  ordinary  legal  procedure.  In  Decem- 
ber, 1254,  an  assembly  of  the  nobles  of  the  realm  at  Paris 
adopted  an  ordonnance  regulating  many  points  in  the 
administration  of  justice.  Among  these,  occurs  an  order 
that  persons  of  good  reputation,  even  though  poor,  shall 
not  be  put  to  the  torture  on  the  evidence  of  one  witness, 
lest,  on  the  one  hand,  they  may  be  forced  to  convict  them- 
selves falsely,  or,  on  the  other,  to  buy  themselves  off  from 
the  infliction.8 

gasse  Christum  .  .  .  .  vi  vel  metu  tormentorum  fateri  compellit. — Lit.  Philip. 
Pulchri,  ap.  Raynouard,  Monuments  Historiques  relatifs  a  la  Condamnation 
des  Chevaliers  du  Temple,  pp.  37-8. 

1  The  fearful  details  of  torture  collected  hy  Raynouard  (op.  cit.)  show  that 
the  Inquisition  hy  this  time  was  fully  experienced  in  such  work. 

3  Personas  autem  honestas  vel  bonae  famje,  etiam  si  sint  pauperes,  ad 


INTRODUCTION     IN     FKAVOE.  888 

This  WOlild  seem  to  Indicate  that  the  system  of  judicial 
torture  was  so  completely  established  tli.it  its  evils  and 
abuses  had  begun  t<>  render  themselves  apparent  and  to 

require  restrictive  legislation.  Yet  the  contemporaneous 
remains  of  jurisprudence  show  no  trace  of  the  custom,  and 
some  of  them  are  of  a  nature  to  render  their  silence  a 
negative  proof  of  no  little  weight.  To  this  period,  for  in- 
stance, belongs  the  earliest  extant  coutumier  of  Normandy, 
published  by  Ludewig,  and  it  contains  no  allusion  to  tor- 
ture. The  same  may  be  said  of  the  For  de  Beam,  granted 
in  1  -2X8,  and  recently  printed  by  MM.  Mazure  and  Hatoulet, 
which  is  very  full  in  its  details  of  judicial  procedure.  The 
collection  of  the  laws  of  St.  Louis,  known  as  the  Etablisse- 
ments,  is  likewise  free  from  any  instructions  or  directions 
as  to  its  application,  though  it  could  scarcely  have  been 
omitted,  had  it  formed  part  of  the  admitted  jurisprudence 
of  the  age.  It  may  be  argued,  indeed,  that  these  codes 
and  laws  assume  the  existence  of  torture,  and  therefore 
make  no  reference  to  it,  but  such  an  argument  would  not 
hold  good  with  respect  to  the  books  of  practice  which 
shrewd  and  experienced  lawyers  commenced  at  that  time 
to  draw  up  for  the  guidance  of  courts  in  the  unsettled 
period  of  conflict  between  the  ancient  feudal  customs  and 
the  invading  civil  law.  For  instance,  no  text-book  can  well 
be  more  minute  than  the  "  Livres  de  Jostice  et  de  Plet," 
written  about  the  year  12G0,  by  a  law}rer  of  the  school  of 
Orleans,  then  celebrated  as  the  headquarters  of  the  study 
of  the  Imperial  jurisprudence.  He  manifests  upon  almost 
every  page  his  familiar  acquaintance  with  the  civil  and 
canon  law,  and  he  could  not  possibly  have  avoided  some 
reference  to  torture,  if  it  had  been  even  an  occasional 
resource  in  the  tribunals  in  which  he  pleaded,  and  yet  he 
does  not  in  any  way  allude  to  it. 

dictum  testis  unici,  tormentis  seu  quaestionibus  inhibemus,  ne  ob  metum 
falsum  confiteri,  vel  suam  vexationem  rediraere  compellantur. — Fontanon, 
Edicts  et  Ordonn.  I.  701.  A  somewhat  different  reading  is  given  by  Isam- 
bert,  Anciennes  Lois  Francaises  I.  270. 


334  TORTURE. 

The  same  conclusion  is  derivable  from  the  "  Coutumes 
du  Beauvoisis,"  written  about  12T0  by  Philippe  de  Beau- 
manoir.  In  his  position  as  royal  bailli,  Beaumanoir  had 
obtained  the  fullest  possible  familiarity  with  all  the  prac- 
tical secular  jurisprudence  of  his  day,  and  his  tendencies 
were  naturally  in  favor  of  the  new  system  with  which  St. 
Louis  was  endeavoring  to  break  down  the  feudal  customs. 
Yet,  while  he  details  at  much  length  every  step  in  all  the 
cases,  civil  and  criminal,  that  could  be  brought  into  court, 
he  makes  no  allusion  to  torture  as  a  means  of  obtaining 
evidence.  In  one  passage,  it  is  true,  he  seems  to  indicate 
that  a  prisoner  could  be  forced,  while  in  prison,  to  criminate 
himself,  but  the  terms  employed  indicate  clearly  that  this 
was  not  intended  to  include  the  administration  of  torment.1 
In  another  place,  moreover,  when  treating  of  robberies,  he 
directs  that  all  suspected  parties  should  be  long  and  closely 
confined,  but  that,  if  they  cannot  be  convicted  by  external 
evidence,  they  must  at  last  be  discharged.3  All  this  is 
clearly  incompatible  with  the  theory  of  torture. 

The  "  Conseil"  of  Pierre  de  Fontaines,  which  was  pro- 
bably written  about  the  year  1260,  affords  the  same  nega- 
tive evidence  in  its  full  instructions  for  all  the  legal  pro- 
ceedings then  in  use.  In  these  three  works,  notwithstand- 
ing the  reforms  attempted  by  St.  Louis,  the  wager  of  battle 
is  still  the  recognized  resource  for  the  settlement  of  doubt- 
ful cases,  wherein  testimony  is  insufficient,  and  the  legist 

1  Cil  qui  est  pris  et  mis  en  prison,  soit  por  meffet  ou  por  dete,  tant  comme 
il  est  en  prison  il  n'est  tenus  a  respondre  a  riens  c'on  H  deraande  fors  es 
cas  tant  solement  por  qui  il  fu  pris.  Et  s'on  li  fet  respondre  autre  coze 
contre  sa  volente,  et  sor  ce  qu'il  allige  qu'il  ne  veut  pas  respondre  tant 
comme  il  soit  en  prison ;  tout  ce  qui  est  fait  contre  li  est  de  nule  valeur,  car 
il  pot  tout  rapeler  quand  il  est  hors  de  prison. — Beaumanoir,  cap.  Ltl.  §  xix. 

2  Quant  tel  larrecin  sunt  fet,  le  justice  doit  penre  toz  les  souspeconneus 
et  fere  moult  de  demandes,  por  savoir  s'il  porra  fere  cler  ce  qui  est  orbe. 
Et  bien  les  doit  en  longe  prison  tenir  et  destroite,  et  toz  cex  qu'il  ara 
souspechonneus  par  malvese  renommee.  Et  s'il  ne  pot  en  nule  maniere 
savoir  le  verite  du  fet,  il  les  doit  delivrer,  se  nus  ne  vient  avant  qui  partie 
se  voille  fere  d'aus  accuser  droitement  du  larrecin. — Ibid.  cap.  xxxi.  §  vi. 


INTRODUCTION    IN     FRANCE.  335 

seems  to  Imagine  no  other  solution.  The  form  of  trial 
is  still  public,  in  ihe  feudal  of  royal  courts,  and  every 
opportunity  is  given  both  lor  the  attack  and  the  defence* 

Hie  work  of  De  Fontaines,  moreover,  happens  to  furnish 
another  proof  that  he  -wrote  at  the  commencement  of  a 

transition  period,  during  which  the  use  of  torture  was  in- 
troduced. In  the  oldest  MSS.  of  his  work,  which  are  con- 
sidered to  date  from  1200  to  1280,  there  is  a  passage  to  the 
effect  that  a  man  convicted  of  crime  may  appeal  if  he  has 
not  confessed,  or,  when  he  has  confessed,  if  it  has  been  in 
consequence  of  some  understanding  (covent).  In  later  MSS., 
transcribed  in  the  early  part  of  the  fourteenth  century,  the 
word  "  covent"  is  replaced  by  "tourmenz,"1  thus  showing 
not  only  the  introduction  of  torture1  during  the  interval, 
but  also  that  a  conviction  obtained  by  it  was  not  final. 

The  Ordonnance  of  1254,  indeed,  as  far  as  it  relates  to 
torture,  is  asserted  by  modern  criticism  to  have  been  ap- 
plicable only  to  the  bailliages  of  Beauvais  and  Cahors."  I 
do  not  know  upon  what  facts  this  opinion  is  based,  but 
the  omission  of  Beaumanoir  to  allude  to  any  such  custom 
would  seem  to  render  doubtful  its  application  to  Beauvais. 
That  it  was  limited  to  a  great  extent  is  more  than  probable ; 
for  in  the  ordonnance  as  registered  in  the  council  of  Bd- 
ziers  in  1255,  the  section  respecting  torture  is  omitted,3 
and  this  would  explain  the  silence  preserved  on  the  subject 
by  all  contemporary  legal  authorities. 

While  giving  due  weight,  however,  to  all  this,  we  must 
not  lose  sight  of  the  fact  that  the  laws  and  regulations 
prescribed  in  royal  ordonnances  and  legal  text-books  were 
practically  applicable  only  to  a  portion  of  the  population. 
All  non-nobles,  who  had  not  succeeded  in  extorting  special 

1  Se  li  hons  n'est  connoissans  de  son  mesfet,  ou  s'il  l'a  coneu  et  ce  a  estc 
par  covent,  s'en  li  fait  jugement,  apeler  en  puet. — Conseil,  ch.  xxii.  art. 
28.     (Edition  Marnier,  Paris,  1846.) 

-  L'Oiseleur,  Les  Crimes  et  les  Peines,  p.  113  (Paris,  1863). 

3  Baluz.  Concil.  Gall.  Narbon.  p.  75. 


336  TORTURE. 

privileges  by  charter  from  their  feudal  superiors,  were  ex- 
posed to  the  caprices  of  barbarous  and  irresponsible  power. 
It  was  a  maxim  of  feudal  law  that  God  alone  could  inter- 
vene between  the  lord  and  his  villein — "  Mes  par  notre  usage 
n'a-il,  entre  toi  et  ton  vilein,  juge  fors  Deu"1 — the  villein 
being  by  no  means  necessarily  a  serf;  and  another  rule 
prohibited  absolutely  the  villein  from  appealing  from  the 
judgment  of  his  lord.3  Outside  of  law,  and  unauthorized 
by  coutumiers  and  ordonnances,  there  must,  under  such 
institutions,  have  been  habitually  vast  numbers  of  cases  in 
which  the  impatient  temper  of  the  lord  would  seek  a  solu- 
tion of  doubtful  matters  in  the  potent  cogency  of  the  rack 
or  scourge,  rather  than  waste  time  or  dignity  in  endeavoring 
to  cross-question  the  truth  out  of  a  quick-witted  criminal. 

Still,  as  an  admitted  legal  procedure,  the  introduction  of 
torture  was  very  gradual.  The  "  Olim,"  or  register  of 
cases  decided  by  the  Parlement  of  Paris,  extends,  with 
some  intervals,  from  1255  to  1318,  and  the  paucity  of  affairs 
in  which  torture  was  used  shows  that  it  could  not  have 
been  habitually  resorted  to  during  this  period.  The  first 
instance,  indeed,  only  occurs  in  1299  when  the  royal  bailli 
of  Senlis  cites  the  mayor  and  jurats  of  that  town  before 
the  Parlement,  because  in  a  case  of  theft  they  had  applied 
the  question  to  a  suspected  criminal ;  and  though  theft  was 
within  their  competence,  the  bailli  argued  that  torture  was 
an  incident  of  u  haute  justice"  which  the  town  did  not  pos- 
sess. The  decision  was  in  favor  of  the  municipality.3  The 
next  year  (1300),  we  find  a  clerk,  wearing  habit  and  ton- 
sure, complaining  that  the  royal  officials  of  the  town  of 
Yilleneuve  in  Rouergue  had  tortured  him  in  divers  ways, 
with  ropes  and  heavy  weights,  heated  eggs  and  fire,  so  that 
he  was  crippled  and  had  been  forced  to  expend  three  hun- 

1  Conseil  ch.  xxi.  art.  8. 

2  Ibid.  art.  14.  Et  encor  ne  puisse  li  vileins  fausser  le  jugement  son 
seignor. 

J  OlimT.  II.  p.  451. 


EARLY    CASES.  331 

dred  livres  Tournois  in  medioinee  and  physicians.  This, 
with  other  proper  damages,  he  prays  oaay  be  made  good  to 
him  by  the  perpetrators,  and  the  arret  of  the  Parlement 

orders  their  persons  and  properly  to  hi-  seized,  and  their 
possessions  valued,  In  order  that  the  amount  may  he 
properly  assessed  among  them.1  Philippe-le-Bel,  notwith- 
standing his  mortal  (piarrel  with  the  papacy — or  perhaps 
in  consequence  of  it — was  ever  careful  of  the  rights  and 
privileges  of  the  clergy,  among  which  the  immunity  from 
secular  jurisdiction  and  consequently  from  torture  was 
prominent.     The  case  evidently  turned  upon  that  point. 

The  third  ease  does  not  present  itself  until  130G.  Two 
Jews,  under  accusation  of  larceny  by  their  brethren,  com- 
plain that  they  had  been  illegally  tortured  by  the  bailli  of 
Bourges,  and  though  one  of  them  under  the  infliction  had 
confessed  to  coinplicit}r,  the  confession  is  retracted  and 
damages  of  three  thousand  livres  Tournois  are  demanded. 
On  the  other  hand,  the  bailli  maintains  that  his  proceed- 
ings are  legal,  and  asks  to  have  the  complainants  punished 
in  accordance  with  the  confession.  The  Parlement  adopts 
a  middle  course;  it  acquits  the  Jews  and  awards  no  dam- 
ages, showing  that  the  torture  was  legal  and  a  retracted 
confession  valueless.8 

The  fourth  case,  which  occurs  in  1307,  is  interesting 
as  having  for  its  reporter  no  less  a  personage  than  Guil- 
laumc  de  Nogaret,  the  captor  of  Boniface  VIII.  A  certain 
Guillot  de  Ferrieres,  on  a  charge  of  robbery,  had  been 
tried  b}-  the  judge  of  Villelongue  and  Nicolas  Bourges, 
royal  chatelain  of  Mont-Ogier.  The  latter  had  tortured 
him  repeatedly  and  cruelly,  so  that  he  was  permanently 
crippled,  and  his  uncle,  Etienne  de  Ferrieres,  Chatelain  of 
Montauban,  claims  damages.  The  decision  condemns 
Nicolas  Bourges  in  a  mulct  of  one  thousand  livres  Tour- 
nois, half  to  Guillot  for  his  sufferings  and  half  to  Stephen 

1  Oliin.  III.  49-50.  3  Ibid.  III.  185-6. 

29 


338  TORTURE 

for  his  expenses,  besides  a  fine  to  the  crown.1  It  is  evident 
that  judges  were  not  allowed  to  inflict  unlimited  torment  at 
their  pleasure. 

The  fifth  case,  occurring  in  1310,  may  be  passed  over,  as 
the  torture  was  not  judicial,  but  merely  a  brutal  outrage 
by  a  knight  on  a  noble  damsel  who  resisted  his  importuni- 
ties :  though  it  may  be  mentioned  that  of  the  fine  inflicted 
on  him,  fifteen  hundred  livres  Tournois  enured  to  the  crown, 
and  only  one  hundred  to  the  victim.3 

The  sixth  case  took  place  in  1312,  when  Michael  de  Poolay, 
accused  of  stealing  a  sum  of  money  from  Nicolas  Loquetier 
of  Rouen,  was  subjected  to  long  imprisonment  and  torture 
at  Chateau-Xeuf  de  Lincourt,  and  was  then  brought  to  the 
Chatelet  at  Paris,  where  he  was  again  examined  without 
confession  or  conviction.  Meanwhile,  the  real  criminal 
confessed  the  theft,  and  Nicolas  applies  to  the  Parlement 
for  the  liberation  of  Michael,  which  is  duly  granted.3 

A  long  interval  then  occurs,  and  we  do  not  hear  of  tor- 
ture again  until  1318,  when  Guillaume  Nivard,  a  monejr- 
changer  of  Paris,  was  accused  of  coining,  and  tortured  by 
the  l*rev6t  of  the  Chatelet.  He  contends  that  it  was  ille- 
gal, while  the  Prevot  asserts  that  his  jurisdiction  empow- 
ered him  to  administer  it.  The  Parlement  investigates 
the  case,  and  acquits  the  prisoner,  but  awards  him  no 
damages.4 

1  Olim,  III.  221-2.  2  Ibid.  III.  505-6.  3  Ibid.  III.  751-2. 

4  Ibid.  III.  1299.  — It  is  somewhat  singular  that  torture  does  not  appear 
to  have  been  used  in  the  trial  of  Enguerrand  de  Marigny,  the  principal 
minister  of  Philippe-le-Bel,  sacrificed  after  his  death  to  the  hatred  of  Charles 
de  Valois.  The  long  endeavor  of  the  young  king  to  protect  him,  and  the 
final  resort  of  his  enemies  to  the  charge  of  sorcery,  with  the  production  of  his 
miserable  accomplices,  would  seem  to  render  the  case  one  particularly  suited 
to  the  use  of  torture.  See  the  detailed  account  of  the  trial  in  the  ••  Grandes 
Chroniques  de  France"  V.  212-220  (Paris,  1837).  In  1315,  Raoul  de 
Presles,  accused  of  causing  the  death  of  Philippe,  was  tortured.  "Mais 
apres  moult  de  paines  et  de  tormens  qu'il  ot  souffert,  ne  pot  on  riens  traire 
de  sa  bouche  fors  que  bien,  si  fu  franchement  laissie  aler,  et  ot  moult  de  ses 
biens  gastes  et  perdus."     Ibid.  p.  221. 


K  K  SI  STANCE    OF    FKI    DA1JSM.  889 

The  very  commonplace  and  trivial  oharactei1  <>f  these 
cases  has  its  interest  in  showing  that  the  practice  of  ap- 
pealing to  the  Parlement  was  not  confined  to  weighty 
matters,  and  therefore  that  the  few  instances  in  which  tor- 
ture was  involved  in  such  appeals  afford  a  fair  index  of 
the  rarity  of  its  use  daring  this  period.  These  cases,  too, 
Save  seemed  to  me  worth  reciting,  as  they  illustrate  the 
principles  upon  which  its  application  was  based  in  the  new 
jurisprudence,  and  the  tentative  and  uncertain  character  of 
the  progress  by  which  the  primitive  customs  of  the  Euro- 
pean races  were  gradually  becoming  supplanted  by  the 
resuscitated  Roman  law. 

This  progress  had  not  been  allowed  to  continue  uninter- 
rupted by  protest  and  resistance.  In  the  closing  days  of 
the  reign  of  Philippe-le-Bel,  the  feudal  powers  of  France 
awoke  to  the  danger  with  which  they  were  menaced  by  the 
extension  of  the  royal  prerogative  during  the  preceding 
half  century.  A  league  was  formed,  which  seemed  to 
threaten  the  existence  of  the  institutions  so  carefully  nur- 
tured by  St.  Louis  and  his  successors.  It  was  too  late, 
however,  and  though  the  storm  broke  on  the  new  and  un- 
tried royalty  of  Louis  Hutin,  the  crown  lawyers  were 
a  heady  too  powerful  for  the  united  seigneurie  of  the  king- 
dom. When  the  various  provinces  presented  their  com- 
plaints and  their  demands  for  the  restoration  of  the  old 
order  of  things,  they  were  met  with  a  little  skilful  evasion, 
a  few  artful  promises,  some  concessions  which  were  readily 
withdrawn,  and  negatives  carefully  couched  in  language 
which  seemed  to  imply  assent. 

Among  the  complaints,  we  find  that  the  introduction  of 
torture  was  opposed  as  an  innovation  upon  the  established 
rights  of  the  subject,  but  the  lawyers  who  drew  up  the 
replies  of  the  king  took  care  to  infringe  as  little  as  they 
could  upon  a  system  which  their  legal  training  led  them 
to  regard  as  an  immense  improvement  in  procedure,  and 
which  enabled  them  to  supersede  the  wager  of  battle,  which 


340  TORTURE. 

they  justly  regarded  as  the  most  significant  emblem  of 
feudal  independence. 

The  movement  of  the  nobles  resulted  in  obtaining  from 
the  king  for  the  several  provinces  a  series  of  charters,  by 
which  lie  defined,  as  vaguely,  indeed,  as  he  could,  the 
extent  of  royal  jurisdiction  claimed,  and  in  which  he  pro- 
mised to  relieve  them  from  certain  grievances.  In  some 
of  these  charters,  as  in  those  granted  to  Britanny,  to  Bur- 
gundy, and  to  Amiens  and  Vermandois,  there  is  no  allusion 
made  to  torture.1  In  the  two  latter,  the  right  to  the  wager 
of  battle  is  conceded,  which  may  explain  why  the  nobles 
of  those  provinces  were  careless  to  protect  themselves  from 
a  process  which  they  could  so  easily  avoid  by  an  appeal  to 
the  sword.  In  the  charter  of  Languedoc,  all  that  Louis 
would  consent  to  grant  was  a  special  exemption  to  those 
who  had  enjoyed  the  dignity  of  capitoul,  consul,  or  decurion 
of  Toulouse  and  to  their  children,  and  even  this  trifling 
concession  did  not  hold  good  in  cases  of  "  lese-majeste"  or 
other  matters  particularly  provided  for  by  law.a  Normandy 
only  obtained  a  vague  promise  that  no  freeman  should  be 
subjected  to  torture  unless  he  were  the  object  of  violent 
presumptions  in  a  capital  offence,  and  that  the  torture 
should  be  so  regulated  as  not  to  imperil  life  or  limb ;  and 
though  the  Normans  were  dissatisfied  with  this  charter, 
and  succeeded  in  getting  a  second  one  some  months  later, 
they  gained  nothing  on  this  point.3 

1  Isambert,  Anciennes  Lois  Francaises,  III.  131,  fiO,  65. 

3  Ordonnance,  lier  Avril  1315,  art.  xix.  (Ibid.  III.  58),  "Nisi  pro  dicto 
crimine  lese  majestatis,  vel  alio  casu  specialiter  a  jure  permisso,  de  quo 
habeatur  vehemens  suspicio  contra  eura."  The  whole  clause  is  borrowed 
from  the  Roman  law,  which  may  have  reconciled  Louis's  legal  advisers  to  it. 
It  is  noteworthy  as  containing  the  first  introduction  of  the  crime  of  lese- 
majeste  into  French  jurisprudence,  thus  marking  the  triumph  of  civil  over 
feudal  law. 

3  Cart.  Norman  i.  Mar.  1315,  cap.  xi.  Cart.  II.  Jul.  1315,  cap.  xv.  (Ibid. 
51,  109).  Quod  in  dicto  ducatu  nullus  homo  liber  quaestionetur,  nisi  ve- 
hemens prassumptio  ipsum  reddat  suspectum  de  crimine  capitali,  et  tunc 


RESIST  A  \r  K     <>F     FEUDALISM.  841 

The  official  documents  concerning  Champagne  have  been 
preserved  to  as  more  in  detail.  The  nobles  ofthat  province 
complained  thai  the  royal  prevCts  and  serjeanta  entered 
upon  their  lands  to  arresi  their  men  and  private  persons, 
-whom  they  then  tortured  in  defiance  of  their  customs  and 
privileges  (♦•contre  lenrs  constnmes  et  libertez").  To  this 
Lonis  promised  to  put  an  end.  The  nobles  further  alleged 
that,  in  contravention  of  the  ancient  usages  and  customs 
of  Champagne  (u  contre  les  us  et  coustumes  enciens  de 
Champaigne"),  the  royal  officers  presumed  to  torture  no- 
bles on  suspicion  of  crime,  even  though  not  caught  in  the 
act,  and  without  confession.  To  this,  Louis  vaguely  re- 
plied, that  for  the  future  no  nobles  should  be  tortured, 
except  under  such  presumptions  as  might  render  it  proper, 
in  law  and  reason,  to  prevent  crime  from  remaining  un- 
punished; and  that  no  one  should  be  convicted  unless 
confession  were  persevered  in  for  a  sufficient  time  after  tor- 
ture.1 This,  of  course,  was  an}Tthing  but  satisfactory,  and 
the  Champenois  were  not  disposed  to  accept  it,  but  all  that 
they  could  obtain  after  another  remonstrance  was  a  simple 
repetition  of  the  promise  that  no  nobles  should  be  tortured 
except  under  capital  accusations.3  The  struggle  apparently 
continued,  for,  in  1319,  we  find  Philippe-le-Long,  in  a  charter 
granted  to  Perigord  and  Quercy,  promising  that  the  pro- 
ceedings preliminary  to  torture  should  be  had  in  the  pre- 
sence of  both  parties,  doubtless  to  silence  complaints  as  to 
the  secret  character  which  criminal   investigations  were 


taliter  quod  propter  gravitatem  tormentorum  mors  aut  mutilatio  non  se- 
quatur. 

1  Ordonn.  Mai  1315,  art.  v.  xiv.  (Bourdot  de  lliehebourg,  III.  233-4). 

-  Ordonn.  Mars  1315,  art  ix.  (Ibid.  p.  235.)  This  ordonnance  is  incor- 
rectly dated.  It  was  issued  towards  the  end  of  May,  subsequently  to  the 
above. 

3  Ordonn.  Jul.  1319  art.  xxii.  (Tsambert  III.  227).  Volumus  et  concediraus 
generose  dictis  nobilibus  dicte  senescallie,  quod  seneschallus  et  alii  officiales 

29* 


342  TORTURE. 

The  use  of  torture  was  thus  permanently  established  in 
the  judicial  machinery  of  France,  as  one  of  the  incidents  in 
the  great  revolution  which  destroyed  the  feudal  power. 
Even  yet,  however,  it  was  not  universal,  especially  where 
communes  had  the  ability  to  preserve  their  franchises.  Count 
Bcugnot  has  published,  as  an  appendix  to  the  "  Olim,"  a  col- 
lection known  as  the  u  Tout  Lieu  de  St.  Dizier,"  consisting  of 
314  decisions  of  doubtful  cases  referred  by  the  magistrates 
of  St.  Dizier  to  the  city  of  Ypres  for  solution,  as  they  were 
bound  to  do  by  their  charter.  The  cases  date  mostly  from 
the  middle  third  of  the  fourteenth  century,  and  were  selected 
as  a  series  of  established  precedents.  The  fact  that,  through- 
out the  whole  series,  torture  is  not  alluded  to  in  a  single 
instance  shows  that  it  was  a  form  of  procedure  unknown 
to  the  court  of  the  eschevins  of  St.  Dizier  and  even  to  the 
superior  jurisdiction  of  the  bailli  of  their  suzerain,  the  Seig- 
nieur  of  Dampierre.  Many  of  these  cases  seem  peculiarly 
adapted  to  the  new  inquisitorial  system.  Thus,  in  1335, 
a  man  was  attacked  and  wounded  in  the  street  at  night. 
A  crowd  collected  at  his  cries,  and  he  named  the  assailant. 
No  rule  was  more  firmly  established  than  the  necessity  of 
two  impartial  witnesses  to  justify  condemnation,  and  the 
authorities  of  St.  Dizier,  not  knowing  what  course  to  take, 
applied  as  usual  for  instructions  to  the  magistrates  of 
Ypres.  The  latter  defined  the  law  to  be  that  the  court 
should  visit  the  wounded  man  on  his  sick-bed  and  adjure 
him  by  his  salvation  to  tell  the  truth.  If  on  this  he  named 
any  one  and  subsequently  died,  the  accused  should  be  pro- 
nounced guilty ;  if,  on  the  other  hand,  he  recovered,  then 
the  accused  should  be  treated  according  to  his  reputation ; 
that  is,  if  of  good  fame,  he  should  be  acquitted ;  if  of  evil 
repute,  he  should  be  banished.1     No  case  more  inviting  to 

nostri  aliquos  quaestionibus  non  supponant,  absque  prommtiatione  seu  sen- 
tentia  in  praosentia  partium  per  eos  proferenda. 

1  Tout  Lieu  de  Saint  Disier  cap.  cclxxii.   (Olim  T.   II.   Append,  p.  85fi). 
The  charter  of  St.  Dizier  directs  that  all  cases  not  therein  specially  provided 


&18I8TAN0I    OP    Tiir.    i'imimunes.  348 

the  theory  of  torture  could  well  be  Imagined, and  yei  neither 
the  honest  bnrghera  <»r  st.  Dizier  nor  the  powerfhl  magnates 
of  Spree  seem  to  luive  entertained  the  Idea  of  its  applica- 

tion.  So,  again,  when  the  Conner  inquire  what  proof  is 
■nfflcient  when  a  man  accuses  another  of  stealing,  the 
answer  is  that  no  evidence  will  convict,  unless  the  goods 
alleged  to  be  stolen  are  found  in  the  possession  of  the 
accused.1  The  wealthy  city  of  Lille  equally  rejected  the 
process  of  torture.  The  laws  there  in  force,  about  the  year 
1350,  prescribe  that  in  homicide  cases  conviction  ought  to 
be  baaed  upon  absolute  evidence,  but  where  this  is  unat- 
tainable, then  the  judges  are  allowed  to  decide  on  mere 
opinion  and  belief,  for  uncertain  matters  cannot  be  rendered 
certain.9  In  such  a  scheme  of  legislation,  the  extortion  of 
a  confession  as  a  condition  precedent  to  condemnation  can 
evidently  find  no  place. 

Attempts  to  introduce  torture  in  Aquitaine  were  appa- 
rently made,  but  they  seem  to  have  been  resisted.  In  the 
Coutumier  of  Bordeaux  during  the  fourteenth  century  there 
is  a  significant  declaration  that  the  sages  of  old  did  not 
wish  to  deprive  men  of  their  liberties  and  privileges.  Tor- 
ture, therefore,  was  prohibited  in  the  case  of  all  citizens 
except  those  of  evil  repute  and  declared  to  be  infamous. 
The  nearest  approach  to  it  that  was  permitted  was  tying 
the  hands  behind  the  back,  without  using  pulleys  to  lift 
the  accused  from  the  ground.3 

for  shall  be  decided  .according  to  the  customs  of  Ypres.  For  two  hundred 
and  fifty  years,  therefore,  whenever  the  eschevins  of  the  little  town  of  Cham- 
pagne felt  at  a  loss,  they  referred  the  matter  to  their  lordly  neighbors  of 
Flanders,  as  to  a  court  of  last  appeal. 

1  Ibid.  cap.  eclxxiii. 

2  Roisin,  Franchises,  Lois  et  Coutumes  de  Lille,  p.  119.  Thus  "on  puet 
et  doit  demander  de  veir  et  de  oir,"  but  when  this  is  impossible,  "on  doit 
et  puet  bien  demander  et  enquerre  de  croire  et  cuidier.  Et  sour  croire  et 
sour  cuidier  avoec  un  veritet  aparent  de  veir  et  d'oir,  et  avoec  l'omechitle 
aparant,  on  puet  bien  jugier,  lone  l'usage  anchyen,  car  d'oscure  fait  oscure 
veritet." 

3  Rabanis,  Revue  Hist,  de  Droit,  1861,  p.  515. — No  volgoren  los  savis 
antiquament  qu'om  pergossa  sa  franquessa  ni  sa  libertat. 


344  TORTURE. 

By  this  time,  however,  places  where  torture  was  not  used 
were  exceptional.  By  a  document  of  1359,  it  appears  that 
it  was  the  custom  to  torture  all  malefactors  brought  to  the 
Chatelet  of  Paris,1  and  though  privileged  persons  constantly 
endeavored  to  exempt  themselves  from  it,  as  the  consuls  of 
Yilleneuve  in  13  ?1,2  other  privileged  persons  as  constantly 
sought  to  obtain  the  power  of  inflicting  it,  as  shown  in  the 
charter  of  Milhaud,  granted  in  1369,  wherein  the  consuls 
of  that  town  are  honored  with  the  special  grace  that  no  tor- 
ture shall  be  administered  except  in  their  presence,  if  they 
desire  to  attend.3  At  the  end  of  the  century,  indeed,  the 
right  to  administer  torture  in  cases  wherein  the  accused 
denied  the  charge  was  regularly  established  as  incident  to 
the  possession  of  haute  justice.4 

Even  in  Germany,  the  citadel  of  feudalism,  the  progress 
of  the  new  ideas  and  the  influence  of  the  Roman  law  had 
spread  to  such  an  extent  that  in  the  Golden  Bull  of  Charles 
IV.,  in  1356,  there  is  a  provision  allowing  the  torture  of 
slaves  to  incriminate  their  masters  in  cases  of  sedition 
against  any  prince  of  the  empire  ;5  and  the  form  of  expres- 
sion emplo3^ed  shows  that  this  was  an  innovation. 

In  Corsica,  at  the  same  period,  we  find  the  use  of  torture 
fully  established,  though  subject  to  careful  restrictions. 
In  ordinary  cases,  it  could  only  be  employed  by  authority 
of  the  governor,  to  whom  the  judge  desiring  to  use  it 
transmitted  all  the  facts  of  the  case ;  the  governor  then 
issued  an  order,  at  his  pleasure,  prescribing  the  mode  and 

Du  Cange  s.  v.  Quczstionarius. 

2  Letters  granting  exemption  from  torture  to  the  consuls  of  Villeneuve  for 
any  crimes  committed  by  them  were  issued  in  1371  (Isambert  V.  352). 
These  favors  generally  excepted  the  case  of  high  treason. 

3  Du  Cange  s.  v.  Qnceslio  No.  3. 

Pour  denier  mettre  a  question  et  tourment. — Jean  Desmarres,  Decisions, 
Art,  295  (Du  Boys,  Droit  Criminel  II.  48). 

In  hac  causa  in  caput  domini  servos  torqueri  statuimus,  id  est,  propter 
causam  factionis. — Bull.  Aur.  cap.  xxiv.  §  9  (Goldast.  I.  305). 


CORSICA  —  V  E  N  T  C  E  —  HUNG  ART.  8  1 5 

degree  to  which  it  might  be  applied.1    In  cases  of  treason, 

however,  these  limit :il  ions  were  not  observed,  and  the 
accused  was  liable  to  its  infliction  as  tar  and  as  often  as 
might  he  found  requisite  to  effect  a  purpose.9 

The  peenliar  character  of  Venetian  civilization  made 
torture  almost  a  necessity.  The  atmosphere  of  suspicion 
and  secrecy  which  surrounded  every  movement  of  that 
republican  despotism,  the  mystery  in  which  it  delighted  to 
shroud  itself,  and  the  pitiless  nature  of  its  legislation  eon- 
spired  to  render  torture  an  indispensable  resource.  I  low 
freely  it  was  administered,  especially  in  political  affairs,  is 
well  illustrated  in  the  statutes  of  the  State  inquisition, 
where  the  merest  suspicion  is  sufficient  to  authorize  its 
application.  Thus,  if  a  senatorial  secretary  were  observed 
to  be  more  lavish  in  his  expenditures  than  his  salary 
"would  appear  to  justify,  he  was  at  once  suspected  of  being 
in  the  pay  of  some  foreign  minister,  and  spies  were  ordered 
on  his  track.  If  he  were  then  simply  found  to  be  absent 
from  his  house  at  undue  hours,  he  was  immediately  to  be 
seized  and  put  to  the  torture.  So,  if  any  one  of  the  in- 
numerable seeret  spies  employed  by  the  inquisitors  were 
insulted  b}r  being  called  a  spy,  the  offender  was  arrested 
and  tortured  to  ascertain  how  he  had  guessed  the  character 
of  the  emissary.3  Human  life  and  human  suffering  were  of 
little  account  in  the  eyes  of  the  cold  and  subtle  spirits  who 
moulded  the  policy  of  the  mistress  of  the  Adriatic. 

Other  races  adopted  the  new  system  less  readily.  In 
Hungary,  for  instance,  the  first  formal  embodiment  of  tor- 
ture in  the  law  occurs  in  1514,  and  though  the  terms  em- 
ployed show  that  it  had  been  previously  used  to  some 
extent,  yet  the  restrictions  laid  down  manifest  an  extreme 
jealousy  of  its  abuse.  Mere  suspicion  was  not  sufficient. 
To  justify  its  application  a  degree  of  proof  was  requisite 
which  was  almost  competent  for  condemnation,  and  the 

1  Statut.  Criminali  cap.  xiv.  (Gregorj,  Statuti  di  Corsica  p.  101). 

2  Ibid.  cnp.  lx.  (p.  163). 

3  Statuts  de  l'Inquisition  d'Etat,  1°  Supp.  §§  20,  21  (Daru). 


346  TORTURE. 

nature  of  this  evidence  is  well  exemplified  in  the  direction 
that,  if  a  judge  himself  witnessed  a  murder,  he  could  not 
order  the  homicide  to  be  tortured  unless  there  was  other 
sufficient  testimony,  for  he  could  not  be  both  witness  and 
judge,  and  his  knowledge  of  the  crime  belonged  to  his  private 
and  not  to  his  judicial  capacity.1  With  such  refinements, 
there  was  little  danger  of  the  extension  of  the  custom. 

In  Poland,  torture  does  not  make  its  appearance  until 
the  fifteenth  century,  and  then  it  was  introduced  gradually, 
with  strict  instructions  to  the  tribunals  to  use  the  most 
careful  discretion  in  its  administration.3  In  Russia,  the  first 
formal  allusion  to  it  is  to  be  found  in  the  Oulagenie  Zakon- 
off,  a  code  promulgated  in  1491,  by  Ivan  III.,  which  merely 
orders  that  persons  accused  of  robbery,  if  of  evil  repute, 
may  be  tortured  to  supply  deficiencies  of  evidence ;  but  as 
the  duel  was  still  freely  allowed  to  the  accused,  the  use  of 
torture  must  have  been  merely  incidental.3  From  another 
source,  dating  about  1530,  we  learn  that  it  was  customary  to 
extort  confessions  from  witches  by  pouring  upon  them  from 
a  height  a  small  stream  of  cold  water;  and  in  cases  of 
contumacious  and  stubborn  criminals,  the  finger  nails  were 
wrenched  off  with  little  wooden  wedges.4     Still,  torture 

1  Synod.  Reg.  ann.  1514,  Prooem.  (Batthyani  Legg.  Eccles.  Hung.  I.  574) 
— ' '  Nam  si  judex  ex  fenestra  praetorii  vel  domus  suae,  intueatur  unum  quem- 
piam  interficiendum,  et  quoniam  hoc  homicidiuni,  vel  non  defertur  in  judi- 
cium, vel  delatum  non  probatur,  et  judex  voluerit  homicidam  de  seipso  sub- 
jicere  torturae,  ut  Veritas  per  illius  confessionem  eliciatur,  certe  non  poterit. 
Sola  enim  judicis  scientia  ad  hoc  non  sufficit  ut  ad  torturam  reus  deveniat, 
quum  ipse  illud  nesciat  ut  judex,  sed  ut  privata  persona,  nee  ipsius  testi- 
monium in  hac  parte  valet,  quum  in  unum  et  eadem  causa  nemo  potest  esse 
et  testis  et  judex  :  igitur  aliunde  est  edocendus,  vel  per  testes  vel  alia  docu- 
menta,  ut  possit  torquere  criminosum."  According  to  some  authorities,  this 
was  a  general  rule — "  Judex  quamvis  viderit  committi  delictum  non  tamen 
potest  sine  aliis  probationibus  reum  torquere,  ut  per  Specul.  etc." — Jo. 
Emerici  a  Rosbach  Process.  Criminal.  Tit.  v.  cap.  v.  No.  13  (Francof.  1645). 

3  Du  Boys,  Droit  Criminel,  I.  650. 

3  Esneaux,  Hist,  de  Russie,  III.  236. 

*  Pauli  Jovii  Moschovia. — This  is  a  brief  account  of  Russia,  compiled  about 
the  year  1530,  by  Paulus  Jovius  from  his  conversations  with  Dmitri,  am- 


T  II  K    INQUISITORIAL    PROCESS.  84t 

makes  but  Little  Bhow  In  the  subsequent  codes,  Bueb  as  the 
Soudebthick,  issued  In  1550,  and  the  Sobornoie*  Oulagenie^ 
promulgated  in  KI48.1 

In  (act,  these  regions  were  still  too  barbarous  for  so 
civilized  a  process.  Returning  to  Central  and  Western 
Europe,  which  during  this  period  had  advanced  with  such 
rapid  strides  of  enlightenment,  we  find  the  inquisitorial 
process  of  torture  attaining  a  portentous  importance  as 
the  groundwork  of  all  criminal  procedure,  and  its  adminis- 
tration prescribed  with  the  most  careful  and  minute  preci- 
sion. 

bassador  to  Clement  VII.  from  Vasili  V.,  first  Emperor  of  Russia.  Olaus 
Magnus,  in  the  pride  of  bis  Northern  blood,  looks  upon  tbis  as  a  slander  on 
the  hardihood  of  the  rugged  Russ — "  hoc  scilicet  pro  terribili  tormento  in  ea 
duii.-sima  gente  reputari,  quae  flamrais  et  eculeis  adhibitis,  vix,  ut  acta 
revelet,  tantillulum  commovetur,"  and  be  broadly  hints  that  the  wily  ambas- 
sador amused  himself  by  hoaxing  the  soft  Italian  :  "fed  revera  vel  ludibriose 
bonus  praesul  a  versuto  Muscovitici  principis  nuntio  Demetrio  dicto,  tempore 
Clementis  VII.  informatus  est  Romae."  (Gent.  Septent.  Hist.  Brev.  Lib  xi. 
c.  xxvi.)  The  worthy  archbishop  doubtless  spoke  of  his  own  knowledge 
with  respect  to  the  use  of  the  rack  and  fire  in  Russia,  but  the  contempt  he 
displays  for  the  torture  of  a  stream  of  water  is  ill-founded.  In  our  prisons, 
the  punishment  of  the  shower-bath  is  found  to  bring  the  most  refractory 
characters  to  obedience  in  an  incredibly  short  time,  and  its  unjustifiable 
severity  in  a  civilized  age  like  this  may  be  estimated  from  the  fact  that  it 
has  occasionally  resulted  in  the  death  of  the  patient.  Thus,  at  the  N.  Y. 
State  Prison  at  Auburn,  in  December,  1858,  a  stout,  healthy  man  named 
Samuel  Moore,  was  kept  in  the  shower-bath  from  a  half  to  three-quarters  of 
an  hour,  and  died  almost  immediately  after  being  taken  out.  A  less  inhumane 
mode  of  administering  the  punishment'  is  to  wrap  the  patient  in  a  blanket, 
lay  him  on  his  back,  and,  from  a  height  of  about  six  feet,  pour  upon  his  fore- 
head a  stream  from  an  ordinary  watering-pot  without  the  rose.  According 
to  experts,  this  will  make  the  stoutest  criminal  beg  for  his  life  in  a  few 
seconds. 

During  the  later  period  of  our  recent  war,  when  the  prevalence  of  exagge- 
rated bounties  for  recruits  led  to  an  organized  system  of  desertion,  the  magni- 
tude of  the  evil  seemed  to  justify  the  adoption  of  almost  any  means  to  arrest 
a  practice  which  threatened  to  rapidly  exhaust  the  resources  of  the  country. 
Accordingly,  the  shower-bath  was  occasionally  put  into  requisition  by  the 
military  authorities  to  extort  confession  from  suspected  deserters,  when  legal 
evidence  was  not  attainable,  and  it  was  found  exceedingly  efficacious. 

1  Du  Boys,  op.  cit.  I.  018. 


348  TORTURE. 

Allusion  has  already  been  made  to  the  influence  of  the 
inquisition  in  introducing  the  use  of  torture.  Its  influence 
did  not  cease  there,  for  with  torture  there  gradually 
arose  the  denial  to  the  accused  of  all  fair  opportunity  of 
defending  himself,  and  the  system  of  secret  procedure  which 
formed  so  important  a  portion  of  the  inquisitorial  practice. 
In  the  old  feudal  courts,  the  prosecutor  and  the  defendant 
appeared  in  person.  Each  produced  his  witnesses ;  the 
case  was  argued  on  both  sides,  and  unless  the  wager  of 
battle  intervened,  a  verdict  was  given  in  accordance  with 
the  law  after  duly  weighing  the  evidence,  while  both  par- 
ties were  at  liberty  to  employ  counsel  and  to  appeal  to  the 
suzerain.  When  St.  Louis  endeavored  to  abolish  the  duel 
and  to  substitute  a  sjTstem  of  inquests,  which  were  neces- 
sarily to  some  extent  ex  parte,  he  did  not  desire  to  with- 
draw from  the  accused  the  legitimate  means  of  defence,  and 
in  the  Ordonnance  of  1254  he  expressly  instructs  his  officers 
not  to  imprison  the  dcfendanTwithout  absolute  necessity, 
while  all  the  proceedings  of  the  inquest  are  to  be  communi- 
cated freely  to  him.1  All  this  changed  with  time  and  the 
authoritative  adoption  of  torture.  The  theory  of  the  inquisi- 
tion, that  the  suspected  man  was  to  be  hunted  down  and 
entrapped  like  a  wild  beast,  that  his  guilt  was  to  be  assumed, 
and  that  the  efforts  of  his  judges  were  to  be  directed  solely 
to  obtaining  against  him  sufficient  evidence  to  warrant  the 
extortion  of  a  confession  without  allowing  him  the  means 
of  defence — this  theory  became  the  admitted  base  of  criminal 
jurisprudence.  The  secrecy  of  these  inquisitorial  proceed- 
ings, moreover,  deprived  the  accused  of  one  of  the  great 
safeguards  accorded  to  him  under  the  Roman  law  of  tor- 
ture. That  law,  as  we  have  seen,  required  the  formality  of 
inscription,  by  which  the  accuser  who  failed  to  prove  his 

1  Statut.  S.  Ludov.  ann.  1254  §§  20,  21.  (Isambert  I.  270)— Et  quia  in 
dictis  senescalliis  secundum  jura  et  terre  consuetudinem  fit  inquisitio  in 
crirainibus,  volumus  et  mandamus  quod  reo  petenti  acta  inquisitionis  tra- 
dantur  ex  integro. 


SECRECY    OP    PROCEEDINGS.  349 

charge  was  liable  to  the  lex  tcUtonis^  and  in  crimes  which 
involved  torture  in  the  investigation,  he  was  duly  tortured. 
This  was  imitated  by  the  Wisigoths,  and  its  principle  was 
admitted  and  enforced  by  the  Church  before  the  introduc- 
tion of  the  Inquisition  had  changed  its  policy  -,1  but  modern 
Europe,  in  borrowing  from  Rome  the  use  of  torture,  Com- 
bined it  with  the  inquisitorial  process,  and  thus  in  civilized 
Christendom  it  speedily  came  to  be  used  more  recklessly 
and  cruelly  than  ever  it  had  been  in  pagan  antiquity. 

In  1498,  an  assembly  of  notables  at  Blois  drew  up  an 
elaborate  ordonnance  for  the  reformation  of  justice  in 
France.  In  this,  the  secrecy  of  the  inquisitorial  process  is 
dwelt  upon  with  peculiar  insistance  as  of  the  first  import- 
ance in  all  criminal  cases.  The  whole  investigation  was 
in  the  hands  of  the  government  official,  who  examined 
every  witness  by  himself,  and  secretly,  the  prisoner  having 
no  knowledge  of  what  was  done,  and  no  opportunity  of 
arranging  a  defence.  After  all  the  testimony  procurable 
in  this  one-sided  manner  had  been  obtained,  it  was  dis- 
cussed by  the  judges,  in  council  with  other  persons  named 
for  the  purpose,  who  decided  whether  the  accused  should 
be  tortured.  He  could  be  tortured  but  once,  unless  fresh 
evidence  meanwhile  was  collected  against  him,  and  his 
confession  was  read  over  to  him  the  next  day,  in  order 
that  he  might  affirm  or  deny  it.  A  secret  deliberation  was 
then  held  by  the  same  council,  who  decided  as  to  his  fate.a 

1  Thus  Gratian,  in  the  middle  of  the  twelfth  century — "Qui  calumniam 
illatam  non  probat  poenam  debet  incurrere  quam  si  probasset  reus  utique 
sustineret." — Decreti  P.  II.  caus.  v.  quaest.  6,  c.  2. 

3  Ordonnance,  Mars  1498,  §§  110-116  (Isambert,  XI.  365.— Fontanon,  I. 
701).  It  would  seem  that  the  only  torture  contemplated  by  this  ordonnance 
was  that  of  water,  as  the  clerk  is  directed  to  record  "la  quantite  de  l'eau 
qu'on  aura  baillee  audit  prisonnier."  This  was  administered  by  gagging 
the  patient,  and  pouring  water  down  his  throat  until  he  was  enormously 
distended.  It  was  sometimes  diversified  by  making  him  eject  the  wiiter 
violently,  by  forcible  blows  on  the  stomach.  V.  Du  Cange  s.  v.  Gaggare. 
30 


350  TORTURE. 

This  cruel  system  was  still  further  perfected  by  Francis 
L,  who,  in  an  ordonnance  of  1539,  expressly  abolished  the 
inconvenient  privilege  assured  to  the  accused  by  St.  Louis, 
which  was  apparently  still  occasionally  claimed,  and  di- 
rected that  in  no  case  should  he  be  informed  of  the  accu- 
sation against  him,  or  of  the  facts  on  which  it  was  based, 
nor  be  heard  in  his  defence.  Upon  examination  of  the  ex 
parte  testimony,  without  listening  to  the  prisoner,  the 
judges  ordered  torture  proportioned  to  the  gravity  of  the 
accusation,  and  it  was  applied  at  once,  unless  the  prisoner 
appealed,  in  which  case  his  appeal  was  forthwith  to  be 
decided  by  the  superior  court  of  the  locality.1  The  whole 
process  was  apparently  based  upon  the  conviction  that  it 
was  better  that  a  hundred  innocent  persons  should  suffer 
than  that  one  culprit  should  escape,  and  it  would  not  be 
easy  to  devise  a  course  of  procedure  better  fitted  to  render 
the  use  of  torture  universal. 

But  even  this  was  not  all.  Torture,  as  thus  employed 
to  convict  the  accused,  became  known  as  the  question  pre- 
paratoire,  and,  in  defiance  of  the  old  rule  that  it  could  be 
applied  but  once,  a  second  application,  known  as  the  ques- 
tion definitive  or  pre al able,  became  customary,  by  which, 
after  condemnation,  the  prisoner  was  again  subjected  to 
the  extremity  of  torment  in  order  to  discover  whether  he 
had  any  accomplices,  and,  if  so,  to  identify  them.     In  this 

Sometimes  a  piece  of  cloth  was  used  to  conduct  the  water  down  his  throat. 
To  this,  allusion  is  made  in  the  4<  Appel  de  Villon  :" — 
"  Se  fusse  des  hoirs  Hue  Capel 
Qui  fut  extraict  de  boucherie, 
On  ne  m'eust,  parmy  ce  drapel, 
Faict  boyre  a  celle  escorcberie." 
CEvres  de  Villon,  p.  310,  Ed.  Prompsault,  Paris,  1834. 

1  Ordonn.  de  Villers-Cotterets,  Aout  1539,  §§  162-164  (Isambert,  XIII. 
633-4).  "Ostant  et  abolissant  tous  styles,  usances  ou  coutumes  par  les- 
quels  les  accuses  avoient  accoutumes  d'etre  ou'is  en  jugement  pour  scavoir 
s'ils  devoient  etre  accuses,  et  a  cette  fin  avoir  communication  des  faits  et 
articles  concernant  les  crimes  et  delits  dont  ils  etoient  accuses." 


CLASSIFICATION.  351 

detestable  practice  we  Bud  another  instance  of  the  unfor- 
tunate influence  of  the  Inquisition  in  modifying  the  Roman 
law.  The  latter  expressly  and  wisely  provided  that  no 
one  who  had  confessed  should  be  examined  as  to  the  guilt 
of  another ;'  the  former  regarded  the  conviction  of  the  ac- 
cused as  a  worthless  triumph  unless  he  could  be  forced  to 
incriminate  his  possible  associates,  and  the  lawyers  fol- 
lowed eagerly  in  its  footsteps. 

Torture  was  also  generically  divided  into  the  question  or- 
dinaire and  extraordinaire — a  rough  classification  to  pro- 
portion the  severity  of  the  infliction  to  the  gravity  of  the 
crime  or  the  urgency  of  the  case.  Thus,  in  the  most  usual 
kind  of  torment,  the  strappado,  popularly  known  as  the 
Moine  de  Caen,  the  ordinary  form  was  to  tie  the  prisoner's 
hands  behind  his  back  with  a  piece  of  iron  between  them; 
a  cord  was  then  fastened  to  his  wrists  by  which,  with  the 
aid  of  a  pulley,  he  was  hoisted  from  the  ground  with  a 
weight  of  one  hundred  and  twenty-five  pounds  attached  to 
his  feet.  In  the  extraordinary  torture,  the  weight  was 
increased  to  two  hundred  and  fifty  pounds,  and  when  the 
victim  was  raised  to  a  sufficient  height,  he  was  dropped 
with  a  jerk  that  dislocated  his  joints,  the  operation  being 
thrice  repeated.3 

Thus,  in  1549,  we  see  the  system  in  full  operation  in  the 
case  of  Jacques  de  Coucy,  who,  in  1544,  had  surrendered 
Boulogne  to  the  English.  This  was  deemed  an  act  of 
treachery,  but  he  was  pardoned  in  154T ;  yet,  notwithstand- 
ing his  pardon,  he  was  subsequently  tried,  convicted,  con- 
demned to  decapitation  and  quartering,  and  also  to  the 
question  extraordinaire  to  obtain  a  denunciation  of  his 
accomplices.3 

1  Nemo  igitur  de  proprio  crimine  confitentem  super  conscientia  scrutetur 
aliena — Const.  17  Cod.  ix.  ii.  (Honor.  423). 

2  Cheruel,  Diet.  Hist,  des  Institutions  etc.  de  la  France,  p.  1220  (Paris, 
1855). 

.    3  Isambert,  XIV.  88.     Beccaria  comments  on  the  absurdity  o£  this  pro- 
ceeding, as  though  a  man  who  had  accused  himself  would  make  any  dim- 


352  TORTURE. 

When  Louis  XIV.,  under  the  inspiration  of  Colbert, 
remoulded  the  jurisprudence  of  France,  various  reforms 
were  introduced  into  the  criminal  law,  and  changes  both 
for  better  and  worse  were  made  in  the  administration 
of  torture.  The  Ordonnance  of  1610  was  drawn  up  by  a 
committee  of  the  ablest  and  most  enlightened  jurists  of  the 
day,  and  it  is  a  melancholy  exhibition  of  human  wisdom 
when  regarded  as  the  production  of  such  men  as  Lamoig- 
non,  Talon,  and  Pussort.  All  preliminary  testimony  was 
still  ex  parte.  The  prisoner  was  heard,  but  he  was  still 
examined  in  secret.  Lamoignon  vainly  endeavored  to  ob- 
tain for  him  the  advantage  of  counsel,  but  Colbert  obsti- 
nately refused  this  concession,  and  the  utmost  privilege 
allowed  the  defence  was  the  permission  accorded  to  the 
judge,  at  his  discretion,  to  confront  the  accused  with  the 
adverse  witnesses.  In  the  question  preliminaire,  torture 
was  reserved  for  capital  cases,  when  the  proof  was  strong 
and  yet  not  enough  for  conviction.  During  its  application 
it  could  be  stopped  and  resumed  at  the  pleasure  of  the 
judge,  but  if  the  accused  were  once  unbound  and  removed 
from  the  rack,  it  could  not  be  repeated,  even  though  addi- 
tional evidence  were  subsequently  obtained.1  A  new  fea- 
ture of  the  law,  however,  which  was  equally  brutal  and 

culty  in  accusing  others. — "Quasi  che  l'uomo  che  accusa  se  stesso,  non 
ncusi  pia  facilmente  gli  altri.  E  egli  giusto  il  tormentare  gli  uomini  per 
l'altrui  delitto?"— Dei  Delitte  e  delle  Pene,  §  xn. 

1  These  restrictions  were  very  well  in  principle,  but  in  practice  they  offered 
little  real  protection  to  the  accused.  Judges  intent  on  procuring  a  convic- 
tion found  no  difficulty  in  eluding  them.  A  contemporary,  whose  judicial 
position  gave  him  every  opportunity  of  knowing  the  truth,  remarks  :  "  lis 
ont  trouve  une  difference  du  mot,  et  veulent  que  puisqu'il  n'est  pas  permis 
de  reiterer  la  torture,  il  soit  permis  de  la  continuer,  quoiqu'il  y  ait  eu  trois 
jours  entiers  de  surseance,  que  si  le  patient  par  bonheur  ou  par  miracle  n'est 
p*s  mort  dans  ces  redoublements  de  douleurs,  ils  ont  trouve  la  fameuse  inven- 
tion de  nouveattx  indices  sttrvemts,  pour  l'y  exposer  tout  de  nouveau  sans 
y  faire  fin.  Par  ce  moyen  ils  ont  rendu  illusoire  l'intention  de  la  Loy,  qui 
veut  qu'on  fasse  fin  de  ces  cruautez  par  un  renvoy  du  patient  qui  a  souffert 
sans  confesser  ou  sans  confirmer  sa  confession  hors  de  ces  tourments." — 
Nicolas,  Dissert,  morale  et  juridique  sur  la  Torture,  p.  Ill  (Amsterd.  1682). 


CAROLINE    CONSTITUTIONS.  353 

illogical,  was  that  which  authorize!  the  employment  of 
t<»rt iirc  "avec  reserve  dee  preuvee*"  Wnen  this  was 
decided  on,  the  silence  of  the  accused  under  torment  did 
not  acquit  him,  though  the  whole  theory  of  the  question 
la}'  in  the  necessity  of  confession.  He  simply  escaped  the 
death  penal  tj',  and  could  be  condemned  to  any  other  punish- 
ment which  the  discretion  of  the  judges  might  impose,  thus 
presenting  the  anomaly  of  a  man  neither  guilty  nor  inno- 
cent, relieved  from  the  punishment  assigned  by  the  law  to 
the  crime  of  which  he  had  been  accused,  and  condemned  to 
some  other  penalt}r  without  having  been  convicted  of  any 
offence.1  The  cruel  mockery  of  the  question  prealable  was 
retained,1  and  in  this  composite  form,  torture  remained  for 
more  than  a  century  an  integral  part  of  the  jurisprudence 
of  France. 

In  Germany,  torture  had  been  reduced  to  a  system,  in 
1532,  by  the  Emperor  Charles  V.,  whose  "  Caroline  Consti- 
tutions" contain  a  more  complete  code  on  the  subject  than 
had  previously  existed,  except  in  the  records  of  the  Inqui- 
sition. Inconsistent  and  illogical,  it  quotes  Ulpian  to 
prove  the  deceptive  nature  of  the  evidence  thence  derivable ; 
it  pronounces  torture  to  be  "  res  dira,  corporibus  hominum 
admodum  noxia  et  quandoque  lethalis,  cui  et  mors  ipsa 
prope  proponenda  ;"3  in  some  of  its  provisions  it  manifests 
extreme  care  and  tenderness  to  guard  against  abuses,  and 
yet  practically  it  is  merciless  to  the  last  degree.  Confes- 
sion made  during  torture  was  not  to  be  believed,  nor  could 

1  The  practical  working  of  this  system  is  exemplified  hy  a  sentence  of  the 
Court  of  Orleans  in  1740,  by  which  a  man  named  Barberousse,  from  whom 
no  confession  had  been  extorted,  was  condemned  to  the  galleys  for  life, 
because,  as  the  sentence  read,  he  was  strongly  suspected  of  premeditated 
murder. — L'Oiseleur,  Les  Crimes  et  les  Peines,  pp.  20G-7. 

3  Ordonnance  Criminel  d'Aout  1670,  Tit.  xiv.  xix.  (Isambert,  XIX.  398, 
412). 

3  Legg.  Capital.  Caroli  V.  c.  lx.,  lviii. 

30* 


354  TORTURE. 

a  conviction  be  based  upon  it  ;■  yet  what  the  accused  might 
confess  after  being  removed  from  torture  was  to  be  received 
as  the  deposition  of  a  dying  man,  and  was  full  evidence.3 
In  practice,  however,  this  only  held  good  when  adverse  to 
the  accused,  for  he  was  brought  before  his  judge  after 
an  interval  of  a  day  or  two,  *when,  if  he  confirmed  the  con- 
fession, he  was  condemned,  if  he  retracted  it,  he  was  at 
once  thrust  again  upon  the  rack.  In  confession  under  tor- 
ture, moreover,  he  was  to  be  closely  cross-questioned,  and 
if  any  inconsistency  was  observable  in  his  self-condemna- 
tion the  torture  was  at  once  to  be  redoubled  in  severity.3 
The  legislator  thus  makes  the  victim  expiate  the  sins  of 
his  own  vicious  system ;  the  victim's  sufferings  increase 
with  the  deficiency  of  the  evidence  against  him,  and  the 
legislator  consoles  himself  with  the  remark  that  the  victim 
has  only  himself  to  thank  for  it,  "  de  se  tantum  non  de  alio 
quseratur."  To  complete  the  inconsistency  of  the  code,  it 
provided  that  confession  was  not  requisite  for  conviction  ; 
irrefragable  external  evidence  was  sufficient ;  and  yet  even 
when  such  evidence  was  had,  the  judge  was  empowered  to 
torture  in  mere  surplusage.*  Yet  there  was  a  great  show 
of  tender  consideration  for  the  accused.  When  the  weight 
of  conflicting  evidence  inclined  to  the  side  of  the  prisoner, 
torture  was  not  to  be  applied.5  Two  adverse  witnesses,  or 
one  unexceptionable  one,  were  a  condition  precedent,  and 
the  legislator  shows  that  he  was  in  advance  of  his  age  by 
ruling  out  all  evidence  resting  on  the  assertions  of  magi- 
cians and  sorcerers.6     To  guard  against  abuse,  the  impos- 

1  Ibid.  c.  xx.  Et,  ut  maxime  fiat,  reum  per  eculei  cruciatus  crimen  fateri, 
ejusmodi  tamen  confessioni  minime  gentium  credendum  et  multo  minus 
sententia  ferenda  est. 

2  Ibid.  c.  lviii.  Neque  iis,  quae  mediis  profundent  rei  cruciatibus,  credet  ; 
sed  iis  demum,  qua?  recens  quaestionibus  exempti  indicabunt  et  confitebuntur, 
perscribenturque  tanquam  ea  quae  morientum  ad  veritatis  investigationem 
sint  allatura. 

a  Ibid.  c.  lv.,  lvi.,  lvii.  *  Ibid.  c.  xxii  ,  lxix. 

6  Ibid.  c.  xxviii.  6  Ibid.  c.  xxiii.,  xxi. 


MODERN     G  II  M  A  N  Y. 

sible  effort  was  made  to  define  strictly  the  exact  quality 
Mid  amount  <>f  evidence  requisite  to  justify  torture,  and 
the  most  elaborate  and  minute  directions  were  given  with 
respect  to  all  the  various  classes  of  crime,  such  as  homicide, 
child-murder,  robbery,  theft,  receiving  stolen  goods,  poison- 
ing, arson,  treason,  sorceiy,  and  the  like  -,1  while  the  judge 
administering  torture  to  an  innocent  man  on  insufficient 
grounds  was  liable  to  make  good  all  damage  or  suffering 
thereby  inflicted.*  The  amount  of  torment,  moreover,  was 
to  be  proportioned  to  the  age,  sex,  and  strength  of  the 
patient;  women  during  pregnancy  were  never  to  be  sub- 
jected to  it ;  and  in  no  case  was  it  to  be  carried  to  such  a 
point  as  to  cause  permanent  injury  or  death.3 

Charles  V.  was  too  astute  a  ruler  not  to  recognize  the 
aid  derivable  from  the  doctrines  of  the  Roman  law  in  his 
scheme  of  restoring  the  preponderance  of  the  Kaisership, 
and  he  lost  no  opportunity  of  engrafting  them  on  the  juris- 
prudence of  Germany.  In  his  Criminal  Constitutions,  how- 
ever, he  took  care  to  embody  largely  the  legislation  of  his 
predecessors  and  contemporaries,  and  though  protests  were 
uttered  by  many  of  the  Teutonic  princes,  the  code  gradually 
became  to  a  great  extent  part  and  parcel  of  the  common 
law  of  Germany.4  A  fair  idea  of  the  shape  assumed,  under 
these  influences,  by  the  criminal  law  in  its  relations  with 
torture,  can  be  obtained  by  examining  some  of  the  legal 
text-books  which  were  current  as  manuals  of  practice  from 
the  sixteenth  to  the  eighteenth  century.5     As  the  several 

1  Legg.  Capital.  Carol.  V.  c.  xxxiii.-xliv. 

3  Ibid.  c.  xx.,  Ixi. 

1  Ibid.  c.  lviii.,  lix.  Accusatus,  si  periculum  sit,  ne  inter  vel  post  tor- 
menta  ob  vulnera  expiret,  ea  arte  torquendus  est,  ne  quid  damni  accipiat. 

4  Heineccii  Hist.  Jur.  Civ.  Lib.  II.  §§  cv.  sqq. 
s  My  principal  authorities  are  three  : — 

I.  "  Tractatus  de  Quaestionibus  seu  Torturis  Reorum,"  published  in  1592 
by  Johann  Zanger  of  Wittemberg,  a  celebrated  jurisconsult  of  the  time,  and 
frequently  reprinted.  My  edition  is  that  of  1730,  with  notes  by  the  learned 
Baron  Senckenberg. 

II.  "  Practica  Crirainalis,  seu  Processus  Judiciarius  ad  usura  et  consue- 


356  TORTURE. 

authors  of  these  works  all  appear  to  condemn  the  principle 
or  to  lament  the  necessity  of  torture,  their  instructions  as 
to  its  employment  may  safely  be  assumed  to  represent  the 
most  humane  and  enlightened  views  current  during  the 
period.1  It  is  easy  to  see  from  them,  however,  that  though 
the  provisions  of  the  Caroline  Constitutions  were  still 
mostly  in  force,  yet  the  practice  had  greatly  extended 
itself,  and  that  the  limitations  prescribed  for  the  protection 
of  innocence  and  helplessness  had  become  of  little  real 
effect. 

Upon  the  theory  of  the  Roman  law,  nobles  and  the 
learned  professions  had  claimed  immunity  from  torture, 
and  the  Roman  law  inspired  too  sincere  a  respect  to  permit 
a  denial  of  the  claim,3  yet  the  ingenuity  of  lawyers  reduced 
the  privilege  to  such  narrow  proportions  that  it  was  prac- 
tically almost  valueless.  For  certain  crimes,  of  course, 
such  as  majesias,  adultery,  and  incest,  the  authority  of  the 
Roman  law  admitted  of  no  exceptions,  and  to  these  were 
speedily  added  a  number  of  other  offences,  classed  as 
crimina  excepta  or  nefanda,  which  were  made  to  embrace 
almost  all  offences  of  a  capital  nature,  in  which  alone  tor- 
ture was  at  any  time  allowable.    Thus,  parricide,  uxoricide, 

tudinem  judiciorum  in  Germania  hoe  tempore  frequentiorem,"  by  Johann 
Emerich  von  Rosbach,  published  in  1645  at  Frankfort  on  the  Mayn. 

III.  "Tractatio  Juridica,  de  Usu  et  Abusu  Torturae,"  by  Heinrieh  von 
Boden,  a  dissertation  read  at  Halle  in  1697  and  reprinted  by  Senckenberg 
in  1730,  in  conjunction  with  the  treatise  of  Zanger. 

1  Cum  nihil  tarn  severum,  tarn  crudele  et  inhumanum  videatur  quam  hom- 
inem  conditum  ad  imaginem  Dei  ....  tormentis  lacerare  et  quasi  excarnifi- 
care  etc. — Zangeri  Tract,  de  Quaestion.  cap.  i.  No.  I. 

Tormentis  humanitatis  et  religionis,  necnon  jurisconsultorum  argumenta 
repugnant. — Jo.  Emerici  a  Rosbach  Process.  Crimin.  Tit.  v.  c.  ix.  No.  I. 

Saltern  horrendus  torturae  abusus  ostendit,  quo  miseri,  de  facinore  aliquo 
suspecti,  fere  infernalibus,  et  si  fieri  possit,  plusquam  diabolicis  cruciatibus 
exponuntur,  ut  qui  nullo  legitimo  probandi  modo  convinci  poterant,  atroci- 
tate  cruciatuum  contra  propriam  salutem  confiteri,  seque  ita  destruere  sive 
jure  sive  injuria,  cogantur. — Henr.  de  Boden  Tract.  Proafat. 

2  Zangeri  cap.  I.  No   49-58. 


MODERN    GERMANY.  357 

fratricide,  witchcraft,  sorcery,  counterfeiting,  theft,  sacrilege, 
rape,  arson,  repeated  homicide, etc,  came  to  be  Included  in 

the  exceptional  cases,  and  the  only  privileges  extended  in 
them  to  nobles  were  that  they  should  not  be  subjected  to 
"plebeian"  tortures.1  In  Catholic  countries,  of  course,  the 
clergy  were  specially  favored.  The  torture  inflicted  on 
them  was  lighter  than  in  the  case  of  laymen,  and  proof  of 
a  much  more  decided  character  was  required  to  justify 
their  being  exposed  to  torment.3 

Slight  as  were  the  safeguards  with  which  legislators 
endeavored  to  surround  the  employment  of  torture,  they 
became  almost  nugatory  in  practice  under  a  system 
which,  in  the  endeavor  to  reduce  doubts  into  certainties, 
ended  by  leaving  everything  to  the  discretion  of  the  judge. 
It  is  instructive  to  see  the  parade  of  insisting  upon  the 

1  Zangeri  cap.  I.  No.  59-88. — Knipschild,  in  his  voluminous  "Tract,  de 
Nobilitate"  (Campodun.  1693),  while  endeavoring  to  exalt  to  the  utmost  the 
privileges  of  the  nobility,  both  of  the  sword  and  robe,  is  obliged  to  admit 
their  liability  to  torture  for  these  crimes,  and  only  urges  that  the  preliminary 
proof  should  be  stronger  than  in  the  case  of  plebeians  (Lib.  II.  cap.  iv.  No. 
108-120) ;  though,  in  other  accusations,  a  judge  subjecting  a  noble  to  torture 
should  be  put  to  death,  and  his  attempt  to  commit  such  an  outrage  could  be 
resisted  by  force  of  arms  (Ibid.  No.  103).  He  adds,  however,  that  no  special 
privileges  existed  in  France,  Lombardy,  Venice,  Italy,  and  Saxony  (Ibid. 
No.  105-7). 

As  early  as  1514,  I  find  an  instance  which  shows  how  little  protection  was 
afforded  by  these  privileges.  A  certain  Dr  Bobenzan,  a  citizen  of  good 
repute  and  syndic  of  Erfurt,  who  both  by  position  and  profession  belonged 
to  the  excepted  class,  when  brought  up  for  sentence  on  a  charge  of  con- 
spiring to  betray  the  city,  and  warned  that  he  could  retract  his  confession, 
extracted  under  torture,  pathetically  replied — "During  my  examination,  I 
was  at  one  time  stretched  upon  the  rack  for  six  hours,  and  at  another  I 
was  slowly  burned  for  eight  hours.  If  I  retract,  I  shall  be  exposed  to  these 
torments  again  and  again.  I  had  rather  die'' — and  he  was  duly  hanged. 
(Erphurdianus  Variloquus,  ann.  1514.) 

9  Emer.  a  Rosbach  Process.  Crimin.  Tit.  v.  cap.  xiv.  As  an  illustration, 
von  Rosbach  states  that  if  a  layman  is  found  in  the  house  of  a  pretty  woman, 
most  authors  consider  the  fact  sufficient  to  justify  torture  on  the  charge  of 
adultery — "hoc  tamen  fallit  in  sacerdote  vel  presbytero,  qui  si  mulierem 
amplexetur,  praesumitur  facere  causa  benediceudi." 


35S  TORTURE. 

necessity  of  strong  preliminary  evidence,1  and  to  read  the 
elaborate  details  as  to  the  exact  kind  and  amount  of  testi- 
mony severally  requisite  in  each  description  of  crime,  and 
then  to  find  that  common  report  was  held  sufficient  to 
justify  torture,  or  unexplained  absence  before  accusation, 
prevarication  under  examination,  and  even  silence;  and  it 
is  significant  of  fearful  cruelty  when  we  see  judges  solemnly 
warned  that  an  evil  countenance,  though  it  may  argue  de- 
pravity in  general,  does  not  warrant  the  presumption  of 
actual  guilt  in  individual  cases  ;3  though  pallor,  under  many 
circumstances,  was  considered  to  sanction  the  application 
of  torture.3  Subtle  lawyers  thus  exhausted  their  ingenuity 
in  discussing  all  possible  varieties  of  indications,  and  there 
grew  up  a  mass  of  confused  rules  wherein,  on  many  points, 
each  authority  contradicted  the  other.  In  a  system  which 
thus  waxed  so  complex,  the  discretion  of  the  judge  at  last 
became  the  only  practical  guide,  and  the  legal  writers  them- 
selves acknowledge  the  worthlessness  of  the  rules  so  labo- 
riously constructed  when  they  admit  that  it  is  left  for  his 
decision  to  determine  whether  the  indications  are  sufficient 
to  warrant  the  infliction  of  torture.4  How  absolute  was 
this  discretion,  and  how  it  was  exercised,  is  manifest  when 

1  Even  this,  however,  was  not  deemed  necessary  in  cases  of  conspiracy 
and  treason  "qui  fiunt  secreto,  propter  probationis  difficultatem  devenitur 
ad  torturam  sine  indiciis."   (Emer.  a  Rosb.  Tit.  v.  cap.  x.  No.  20.; 

2  Fama  frequens  et  vehemens  facit  indicium  ad  torturam.  (Zanger.  c.  II. 
No.  80.)  Reus  ante  accusationem  vel  inquisitionem  fugiens  et  citatus  con- 
tumaciter  absens,  se  suspectum  reddit  ut  torqueri  possit.  (Ibid.  No.  91.) 
Inconstantia  sermonis  facit  indicium  ad  torturam.  (Ibid.  No.  96-99.)  Ex 
taciturnitate  oritur  indicium  ad  torturam.  (Ibid.  No.  103.)  Physiognomia 
malam  naturam  arguit,  non  autem  delictum.    (Ibid.  No.  85.) 

3  Deinde  a  pallore  et  similibus  oritur  indicium  ad  torturam  secundum 
Bartol.  (Emer.  a  Rosbach  Tit.  v.  c.  vii.  No.  28-31.)  Whereupon  von  Ros- 
bach  enters  into  a  long  dissertation  as  to  the  causes  of  paleness. 

4  Judieis  arbitrio  relinquitur  an  indicia  sint  sumcientia  ad  torturam. 
(Zanger.  cap.  n.  No.  16-20.)  An  indicia  sufficiant  ad  torturam  judieis 
arbitrio  relictum  est.  .  .  .  Indicia  ad  torturam  sufBcientia  reliquuntur  officio 
judieis.    (Emer.  a  Rosbach  Tit.  v.  c.  ii.  p.  529.) 


MODERN    GERMANY.  359 

von  Rosbach  tells  us  that  the  magistrates  of  his  time  in 
the  absence  of  all  evidence,  sometimes  resorted  to  divi na- 
tion or  the  lot  in  order  to  obtain  proof  on  which  they  could 
employ  the  rack  or  strappado.1 

Such  a  system  tends  of  necessity  to  its  own  extension, 
and  it  is  therefore  not  surprising  to  find  that  the  aid  of 
torture  was  increasingly  invoked.  The  prisoner  who  re- 
fused to  plead,  whether  there  was  any  evidence  against 
him  or  not,  could  be  tortured  until  his  obstinacy  gave  way.8 
Even  witnesses  were  not  spared,  whether  in  civil  suits  or 
criminal  prosecutions.3  It  was  discretionary  with  the  judge 
to  inflict  moderate  torture  on  them,  when  the  truth  could 
not  otherwise  be  ascertained.  Infamous  witnesses  could 
always  be  tortured  ;  those  not  infamous,  only  when  they 
prevaricated,  or  when  they  were  apparently  committing 
perjury;  but,  as  this  was  necessarily  left  with  the  judge 
to  determine,  the  instructions  for  him  to  guide  his  decision 
by  observing  their  appearance  and  manner  show  how  com- 
pletely the  whole  case  was  in  his  power,  and  how  readily 
he  could  extort  evidence  to  justify  the  torture  of  the  priso- 
ner, and  then  extract  from  the  latter  a  confession  by  the 
same  means.  A  reminiscence  of  Roman  law,  however,  is 
visible  in  the  rule  that  no  witness  could  be  tortured  against 
his  kindred  to  the  seventh  degree,  nor  his  near  connections 
by  marriage,  his  feudal  superiors,  nor  other  similar  per- 
sons.4 

Some  limitations  were  imposed  as  to  age  and  strength. 
Children  under  fourteen  could  not  be  tortured,  nor  the 
aged  whose  vigor  was  unequal  to  the  endurance,  though 
they  could  be  tied  to  the  rack,  and  menaced  to  the  last 
extremity.     Insanity  was  likewise  a  safeguard,  and  much 

1  Emer.  a  Rosbach  Tit.  v.  c.  x.  No.  25.  Sed  aliqui  judices  quando  desunt 
indicia,  procedunt  per  sortilegia  et  similia. 

2  Ibid.  Tit.  v.  cap.  x.  No.  2. 

3  Ibid.  Tit.  v.  cap.  xiv.  No.  16. 

4  Zangeri  op.  cit.  cap.  i.  No.  8-25. 


360  TORTURE. 

discussion  was  had  as  to  whether  the  deaf,  dumb,  and  blind 
were  liable  or  not.  Zanger  decides  in  the  affirmative, 
whenever,  whether  as  principles  or  witnesses,  good  evi- 
dence was  to  be  expected  from  them.1  The  Roman  rule 
was  followed  that,  whenever  several  parties  were  on  trial 
under  the  same  accusation,  the  torturer  should  commence 
with  the  weakest  and  tenderest,  while  a  refinement  of 
cruelty  prescribed  that  if  a  husband  and  wife  were  arraigned 
together,  the  wife  should  be  tortured  first,  and  in  the  pre- 
sence of  her  husband ;  and  if  a  father  and  son,  the  son 
before  his  father's  face.3 

Some  facilities  for  defence  were  allowed  to  the  accused, 
but  in  practice  the}'  were  almost  hopelessly  slender.  He 
was  permitted  to  employ  counsel,  and  if  unable  to  do  so, 
it  was  a  duty  of  the  judge  to  look  up  testimony  for  the 
defence.3  After  all  the  adverse  evidence  had  been  taken, 
and  the  prisoner  had  been  interrogated,  he  could  demand 
to  see  a  copy  of  the  proceedings,  in  order  to  frame  a  de- 
fence ;  but  the  demand  could  be  refused,  in  which  case,  the 
judge  was  bound  to  sift  the  evidence  himself,  and  to  inves- 
tigate the  probable  innocence  or  guilt  of  the  accused.  The 
recognized  tendency  of  such  a  system  to  result  in  an  un- 
favorable conclusion  is  shown  by  Zanger's  elaborate  in- 
structions on  this  point,  and  his  warning  that,  however 
justifiable  torture  may  seem,  it  ought  not  to  be  resorted  to 
without  at  least  looking  at  the  evidence  which  may  be 
attainable  in  favor  of  innocence  ;4  while  von  Rosbach  cha- 
racterizes as  the  greatest  fault  of  the  tribunals  of  his  day, 
their  neglect  to  obtain  and  consider  testimony  for  the 
prisoner  as  well  as  that  against  him.5  In  some  special  and 
extraordinary  cases,  the  judge  might  allow  the  accused  to 
be  confronted  with  the  accuser,  but  this  was  so  contrary 
to  the  secrecy  required  by  the  inquisitorial  system,  that  he 

1  Zangeriop.  cit.  cap.  i.  No.  34-48.  s  Ibid.  cap.  iv.  No.  25-30. 

3  Ibid.  cap.  in.  No  3.  4  Ibid.  cap.  HI.  No.  1,  4,  5-43. 

s  Process.  Crim.  Tit.  v.  cap.  xi.  No.  6. 


MODERN    Q1BMANT.  3C1 

Wftfi  cautioned  that  it  was  ■  very  unusual  course,  and  one 
not  lightly  to  be  allowed,  as  it  was  odious,  unnecessary, 
attd  not  pertinent  to  the  trial.1  Theoretically,  there  was  a 
right  of  appeal  against  an  order  to  inflict  torture,  but  this 
even  when  permitted,  could  usually  avail  the  accused  but 
little,  for  the  ex  parte  testimony,  which  had  satisfied  the 
low  or  judge,  could,  of  course,  in  most  instances,  be  so 
presented  to  the  higher  court  as  to  insure  the  affirmation  of 
the  order,  and  prisoners  in  their  helplessness  would  doubt- 
less feel  that  by  the  attempt  to  appeal  they  would  probably 
only  increase  the  severity  of  their  inevitable  sufferings.2 

Slender  as  were  these  safeguards  in  principle,  they  were 
reduced  in  practice  almost  to  a  nullity.  That  the  discretion 
lodged  in  the  tribunals  was  habitually  and  frightfully 
abused  is  only  too  evident,  when  von  Rosbach  deems  it  neces- 
sary to  reprove,  as  a  common  error  of  the  judges  of  his 
time,  the  idea  that  the  use  of  torture  was  a  matter  alto- 
gether dependent  upon  their  pleasure,  "  as  though  nature 
had  created  the  bodies  of  prisoners  for  them  to  lacerate  at 
will."3  It  was  an  acknowledged  rule,  that  when  guilt 
could  be  sufficiently  proved  by  witnesses,  torture  was  not 
admissible  ;4  yet  a  practice  grew  up  whereby,  after  a  man 
had  been  duly  convicted  of  a  capital  crime,  he  was  tortured 
to  extract  confessions  of  any  other  offences  of  which  he 
might  be  guilty.5  Martin  Bernhardi,  writing  in  IT 05,  as- 
serts that  this  was  resorted  to  in  order  to  prevent  the 
convict  from  appealing  from  the  sentence ;"  and  as  late  as 
1764,  Beccaria  lifts  his  voice  against  it  as  a  still  existing 
abuse,  which  he  well  qualifies  as  senseless  curiosity,  im- 

1  Zangeri  cap.  n.  No.  49-50. — Cum  enim  confrontntio  odiosa  sit  et 
species  suggestions,  et  remedium  extraordinarium  ad  substantias  processus 
non  pertinens,  et  propterea  non  necessaria. 

2  Ibid.  cap.  iv.  No.  1-6. 

3  Process.  Crimin.  Tit.  v.  cap.  ix.  No.  10. 
*  Zangeri  cap.  I.  No.  37. 

8  Boden  de  Usu  et  Abusu  Torturae  Th.  xn. 

6  Martini  Bernbardi  Diss.  Inaug.  de  Tortura  cap.  I.  §  4. 

31 


-302  TORTURE. 

pertinent  in  the  wantonness  of  its  cruelty.1  Another  posi- 
tive rule  was  that  torture  could  only  be  applied  in  accusa- 
tions involving  life  or  limb  f  but  Senckenberg  assures  us 
that  he  had  known  it  to  be  resorted  to  in  mercantile  mat- 
ters, where  money  only  was  at  stake.3  Equally  absolute 
was  the  maxim  that  torture  could  not  be  employed  unless 
there  was  positive  proof  that  crime  of  some  sort  had  been 
committed,  for  its  object  was  to  ascertain  the  criminal  and 
not  the  crime  ;*  yet  von  Rosbach  remarks  that  as  soon  as 
any  one  claimed  to  have  lost  anything  by  theft,  the  judges 
of  his  day  hastened  to  torture  all  suspect,  without  wait- 
ing to  determine  whether  the  theft  had  really  occurred  as 
alleged,5  and  von  Boden  declares  that  many  tribunals  were 
in  the  habit  of  resorting  to  it  in  cases  wherein  subsequent 
developments  showed  that  no  crime  had  really  been  com- 
mitted, and  he  quotes  a  brother  lawyer,  who  jocosely  cha- 
racterized such  proceedings  as  putting  the  cart  before  the 
horse,  and  bridling  him  by  the  tail.6 

1  He  represents  the  judge  as  addressing  his  victim  "  Tu  sei  il  reo  di  un 
delitto,  dunque  e  possibile  che  lo  sii  di  cent'  altri  delitti :  questo  dubbio  mi 
pesa,  voglio  accertarmene  col  mio  criterio  di  verita  :  le  leggi  ti  tormentano, 
perche  sei  reo,  perche  puoi  esser  reo,  perche  voglio  che  tu  sii  reo." — Dei 
Delitti  e  delle  Pene,  §  xn. 

3  Zangeri  Praefat.  No.  31. 

3  Zangeri  Tract.  Not.  ad  p.  903.  Bernhardi  states  that  in  cases  of  presumed 
fraudulent  bankruptcy,  not  only  the  accused,  but  also  the  witnesses,  if 
suspected  of  concealing  the  truth,  could  be  tortured. — Diss.  Inaug.  de  Tort. 
cap.  I.  §  iv. 

4  Zangeri  Praefat.  No.  32. — Tortura  enim  datur  non  ad  liquidandum  fac- 
tum sed  personam. 

*  Process.  Criminal.  Tit.  v.  cap.  ix.  No.  17. 

6  De  Usu  et  Ab.  Tort.  Th.  ix. — Qui  aliter  procedit  judex,  equum  cauda 
frenat  et  post  quadrigas  caballum  jungit. 

The  history  of  criminal  jurisprudence  is  full  of  such  proceedings.  Boyvin 
du  Villars  relates  that  during  the  war  in  Piedmont,  in  1559,  he  released 
from  the  dungeons  of  the  Marquis  of  Masserano  an  unfortunate  gentleman 
who  had  been  secretly  kept  there  for  eighteen  years,  in  consequence  of  having 
attempted  to  serve  a  process  from  the  Duke  of  Savoy  on  the  marquis.  His 
disappearance  having  naturally  been  attributed  to  foul  play,  his  kindred 
prosecuted  an  enemy  of  the  family,  who,  under  stress  of  torture,  duly  con- 


MODERN    (I  IB  MANY.  868 

We  have  seen  above  thai  the  prisoner  was  entitled  to 
gee  a  copy  of  the  evidence  taken  in  seorel  against  him;  yet 

von  Rosbach  states  that  judges  were  not  in  the  habit  <>f 
permitting  it,  though  no  authority  justified  them  in  the 
rerasai;1  Mini  half  a  oent  wty  Later  this  ia  confirmed  by  Bern- 

hardi.  who  <iivrs  as  •  reason  licit  by  withholding  the  pro* 
eeedings  from  the  accused  they  saved  themselves  trouble.9 
Even  the  inalienable  privilege  of  being  heard  in  his  defence 
was  habitually  refused  by  many  tribunals,  which  proceeded 
at  once  to  torture  after  hearing  the  adverse  evidence,  and 
von  Rosbach  feels  it  necessary  to  argue  at  some  length 
the  propriety  of  hearing  what  the  accused  may  have  to 
say.'  In  the  same  way,  the  right  to  appeal  from  an  order 
to  torture  was  evaded  by  judges,  who  sent  the  prisoner  to 
the  rack  without  a  preliminary  formal  order,  thus  depriving 
him  of  the  opportunity  of  appealing.4 

If  the  irresponsible  power  which  the  secret  inquisitorial 
process  lodged  in  the  hands  of  the  judges  was  thus  fear- 
fully abused  in  destroying  all  the  safeguards  provided  for 
the  prisoner  by  law,  it  was  none  the  less  so  in  disregarding 
the  limitations  provided  against  excessive  torture.  A  uni- 
versal prescription  existed  that  the  torment  should  not  be 
so  severe  or  so  prolonged  as  to  endanger  life  or  limb,  or  to 
permanently  injure  the  patient;  but  Senckenberg  assures 
us  that  he  was  personally  cognizant  of  cases  in  which  inno- 
cent persons  had  been  crippled  for  life  by  torture  under 
false  accusations,5  and  the  meek  Jesuit  Del  Rio,  in  his 
instructions  to  inquisitors,  quietly  observes  that  the  flesh 

fessed  to  having  committed  the  murder,  find  was  accordingly  executed  in  a 
town  where  Masserano  himself  was  residing. — Boyvin  du  Villars,  Memoires 
Liv.  vn. 

1  Process.  Criminal.  Tit.  v.  cap.  x.  No.  7. — Hodie  vero  judices  reis  captis 
non  exhibent  indiciorum  exemplum,  et  procedunt  ad  torturara.  Sed  haec 
opinio  in  jure  undique  refellitur,  et  ego  senio  confectus  nunquam  inveni 
aliquam  legem  seu  rationem  pro  tali  observantia. 

2  Diss.  Inaugrcap.  i.  $  xii.       3  Process.  Criminal.  Tit.  v.  cap.  x.  No.  8-16. 
4  Bernhardi  loc.  cit.  *  Not.  ad  p.  907  Zangeri  op.  cit. 


364  TORTURE. 

should  not  be  wounded  nor  the  bones  broken,  but  that  tor- 
ture could  scarce  be  properly  administered  without  more 
or  less  dislocation  of  the  joints.1  Von  Boden,  moreover, 
very  justly  points  out  the  impossibility  of  establishing  any 
rules  or  limitations  of  practical  utility,  when  the  capacity 
of  endurance  varies  so  greatly  in  different  constitutions, 
and  the  executioners  had  so  many  devices  for  heightening 
or  lessening,  within  the  established  bounds,  the  agony 
inflicted  by  the  various  modes  of  torture  allowed  by  law. 
Indeed,  he  does  not  hesitate  to  exclaim  that  human  inge- 
nuity could  not  invent  suffering  more  terrible  than  was 
constantly  and  legally  employed,  and  that  Satan  himself 
would  be  unable  to  increase  its  refinements.2 

It  is  true  that  the  old  rules  which  subjected  the  judge  to 
some  responsibility  were  still  nominally  in  force.  When 
torture  was  ordered  without  a  preliminary  examination, 
or  when  it  was  excessive  and  caused  permanent  injury,  the 
judge  was  held  by  all  authorities  to  have  acted  through 
malice,  and  his  office  was  no  protection  against  reclamation 
for  damages.3  Z anger  also  quotes  the  Roman  law  as  still 
in  force,  to  the  effect  that  if  the  accused  dies  under  the 
torture,  and  the  judge  has  been  either  bribed  or  led  away 
by  passion,  his  offence  is  capital,  while  if  there  had  been 
insufficient  preliminary  evidence,  he  is  punishable  at  dis- 

1  Del  Rio  Magicar.  Disquisit.  Lib.  v.  sect.  ix. — Ut  corpus  rei  maneat  vel 
illaesuui  vel  modice  laesum,  salvura  innocentiae  vel  supplicio  :  illaosum,  dico, 
quod  ad  carnis  lacerationem  aut  ossiura  vel  nervorum  fracturam,  nam  quoad 
discompaginationem,  sive  disjunctionem  juncturarum  et  ossium  non  immode- 
ratum  vix  in  tormentis  ea  potest  evitari. 

3  De  Usu  et  Abusu  Tort.  Th.  xm. — Deinde  quoque  in  ultimo  torturas 
gradu  concesso,  summi  quos  humana  malitia  invenire  potuit  cruciatus,  sine 
fine  et  modo  sic  adhiberi  soleant,  ut  diabolum  ipsum  asperius  quid  quo  cor- 
pori  humano  in  hac  vita  noceat,  excogitare  posse  dubium  sit. 

It  must  not  be  supposed  from  this  and  the  preceding  extracts  that  von 
Boden  was  an  opponent  of  torture  on  principle.  Within  certain  bounds,  he 
advocated  its  use,  and  he  only  deplored  the  excessive  abuse  of  it  by  the 
tribunals  of  the  day. 

3  Zangeri  op.  cit.  cap   i.  No.  42-44. 


MODERN    dlEHANY. 

eretion.1  The  secrecy  of  criminal  trials,  however,  offered 
an  almost  impenetrable  shield  to  the  judge,  and  we  are 
quite  prepared  to  believe  the  assertion  of  Sencken berg  that 

these  rules  had  become  obsolete,  and  that  he  had  seen  not 
a  tew  instances  of  such  violations  of  the  law  without  there 
being  any  idea  of  holding  the  judge  to  accountability.* 

Not  the  least  of  the  evils  of  the  system,  indeed,  was  its 
Inevitable  influence  upon  the  judge  himself.  He  was  re- 
quired b}'  his  office  to  be  present  during  the  infliction  of 
torture,  and  to  conduct  the  interrogatory  personally.  Cal- 
lousness to  human  suffering,  whether  natural  or  acquired, 
thus  became  a  necessity,  and  the  delicate  conscientiousness 
which  should  be  the  moving  principle  of  every  Christian 
tribunal  was  well-nigh  an  impossibility.  Nor  was  this  all, 
for  when  even  a  conscientious  judge  had  once  taken  upon 
himself  the  responsibility  of  ordering  a  fellow-being  to  the 
torture,  every  motive  would  lead  him  to  desire  the  justifica- 
tion of  the  act  by  the  extortion  of  a  confession ;  and  the  very 
idea  that  he  might  be  possibly  held  to  accountability,  in- 
stead of  a  safeguard  for  the  prisoner,  became  a  cause  of 
subjecting  him  to  additional  agony.3  Both  the  good  and 
the  evil  impulses  of  the  judge  were  thus  enlisted  against 
the  unfortunate  being  at  his  mercy.  Human  nature  was 
not  meant  to  face  such  temptations,  and  the  fearful  inge- 
nuit3',  which  multiplied  the  endless  refinements  of  torment, 
testifies  how  utterly  humanity  yielded  to  the  thirst  of 
wringing  conviction  from  the  weaker  party  to  the  unequal 
conflict,  where  he  who   should  have  been  a  passionless 

1  Zangeri  cap.  in.  No.  20-22. 

2  Loc.  cit.  Hujus  doctrinae  forte  hodie  parvus  usus,  et  vidi  ipse  exempla 
nonnulla  ubi  ne  quidein  de  puniendo  judice  cogitatum. 

3  The  prudence  of  persevering  in  torture  until  a  confession  was  reached 
was  at  least  recognized,  if  not  advised,  by  jurists.  "Occurrithic  cautelaBruni 
dicentis,  si  judex  indebite  torserit  aliquem,  facit  reum  confiteri  quod  fuit 
legitime  tortus,  de  qua  confessione  faciat  notarium  rogatum."  (Jo.  Em.  a 
Rosb.  Process.  Crim.  Tit.  v.  cap.  xv.  No.  6.)  To  suggest  the  idea  was  prac- 
tically to  recommend  it. 

31* 


366  TORTURE. 

arbiter  was  made  necessarily  a  combatant.  How  completely 
the  prisoner  tlins  became  a  quarry  to  be  hunted  to  the 
death  is  shown  by  the  jocular  remark  of  Farinacci,  a  cele- 
brated authority  in  criminal  law,  that  the  torture  of  sleep- 
lessness, invented  by  Marsiglio,  was  most  excellent,  for  out 
of  a  hundred  martyrs  exposed  to  it  not  two  could  endure 
it  without  becoming  confessors  as  well.1  Few,  when  once 
engaged  in  such  a  pursuit,  could  be  expected  to  follow  the 
example  of  the  Milanese  judge,  who  resolved  his  doubts  as 
to  the  efficacy  of  torture  in  evidence  by  killing  a  favorite 
mule,  and  allowing  the  accusation  to  fall  upon  one  of  his 
servants.  The  man  of  course  denied  the  offence,  was  duly 
tortured,  confessed,  and  persisted  in  his  confession  after 
torture.  The  judge,  thus  convinced  by  experiment  of  the 
fallacy  of  the  system,  resigned  the  office  whose  duties  he 
could  no  longer  conscientiously  discharge,  and  in  his  sub- 
sequent career  rose  to  the  cardinalate.8 

1  Quoted  by  Nicolas,  Diss.  Mor.  et  Jurid.  sur  la  Torture,  p.  21.  This 
mode  of  torture  consisted  in  placing  the  accused  between  two  jailers,  who 
pummelled  him  whenever  he  began  to  doze,  and  thus,  with  proper  relays, 
deprived  him  of  sleep  for  forty  hours.  Its  inventor  considered  it  humane, 
as  it  endangered  neither  life  nor  limb,  but  the  extremity  of  suffering  to 
which  it  reduced  the  prisoner  is  shown  by  its  efficaciousness. 

I  have  purposely  abstained  from  entering  into  the  details  of  the  various 
forms  of  torture.  They  may  be  interesting  to  the  antiquarian,  but  they 
illustrate  no  principle,  and  little  would  be  gained  by  describing  these  melan 
choly  monuments  of  human  error.  Those  who  may  be  curious  in  such  mat 
ters  will  find  ample  material  in  Grupen  Observat.  Jur.  Crim.  de  Applicat 
Torment.,  4to.,  Hanov.  1754;  Zangevi  op.  cit.  cap.  iv.  No.  9,  10;  Hieron 
Magius  de  Equuleo  cum  Appendd.  Amstelod.  1664,  etc.  According  to  Bern 
hardi,  Johann  Graefe  enumerates  no  less  than  six  hundred  different  instru 
ments  invented  for  the  purpose. 

-  I  give  this  anecdote  on  the  authority  of  Nicolas  (op.  cit.  p.  169),  who 
quotes  it  as  a  well-known  circumstance,  without  furnishing  either  name  or 
date.  He  also  relates  (p.  178)  a  somewhat  similar  case  which  was  told  to 
him  at  Amsterdam  in  explanation  of  the  fact  that  the  city  was  obliged  to 
borrow  a  headsman  from  the  neighboring  towns  whenever  the  services  of  one 
were  required  for  an  execution.  It  appears  that  a  young  man  of  Amsterdam, 
returning  home  late  at  night  from  a  revel,  sank  upon  a  door-step  in  a 
drunken  sleep.     A  thief  emptied  his  pockets,  securing,  among  other  things, 


ai  ODBB  N    G  1 1  m  \  \Y.  861 

Tn  theory,  the  licensed  could  b€  tortured  only  once,  but 
this, like  all  other  attempts  to  humanize  the  law.  amounted 
to  but  little.  A  repetition  of  torture  could  be  justified  oil 
the  ground  that  the  first  application  had  been  Light  or  in- 
sufficient ;  the  production  of  fresh  evidence  authorized  I 
second  and  even  a  third  infliction;  a  failure  to  persevere 
in  confession  after  torture  rendered  a  repetition  requisite, 
and  even  a  variation  in  the  confession  required  confirmation 
by  the  rack  or  strappado.1 

With  all  this  hideous  accumulation  of  cruelty  which 
shrank  from  nothing  in  the  effort  to  wring  a  confession 
from  the  wretched  victim,  that  confession,  when  thus 
so  dearly  obtained,  was  estimated  at  its  true  worthless- 
ness.  It  was  insufficient  for  conviction  unless  confirmed 
by  the  accused  in  a  subsequent  examination  beyond  the 
confines  of  the  torture  chamber.  If  then  retracted,  the 
accused  was  again  tortured,  when  a  second  confession  and 
retraction  made  an  exceedingly  awkward  dilemma  for  the 
subtle  jurisconsults.  They  agree  that  he  should  not  be 
allowed  to  escape  after  giving  so  much  trouble.  Some  advo- 
cated the  regular  punishment  of  his  crime,  others  demanded 
for  him  an  extraordinary  penalty ;  some,  again,  were  in 
favor  of  incarcerating  him  ;3  others  assumed  that  he  should 

a  dirk,  with  which,  a  few  minutes  later,  he  stabhed  a  man  in  a  quarrel. 
Returning  to  the  sleeper,  he  slipped  the  bloody  weapon  back  to  its  place. 
The  young  man  awoke,  but,  before  he  had  taken  many  steps,  he  was  seized 
by  the  watch,  who  had  just  discovered  the  murder.  Appearances  were 
against  him;  he  was  tortured,  confessed,  persisted  in  confession  after  tor- 
ture, and  was  duly  hanged.  Soon  after,  the  real  criminal  was  condemned 
for  another  crime,  and  revealed  the  history  of  the  preceding  one,  whereupon 
the  States  .General  of  the  United  Provinces,  using  the  ordinary  logic  of  the 
criminal  law,  deprived  the  city  of  Amsterdam  of  its  executioner,  as  a  punish- 
ment for  a  result  that  was  inevitable  under  the  system. 

1  Zangeri  cap.  v.  No.  73-83.  Some  writers,  however,  authorize  its  repe- 
tition as  often  as  may  seem  necessary  to  the  judge  (Rosbach  op.  cit.  Tit.  v. 
cap.  xv.  No  14),  and  Del  Rio  mentions  a  case  in  Westphalia  wherein  a  man 
accused  of  lycanthropy  was  tortured  twenty  times  (Lib.  v.  Sect.  ix.). 

2  Zangeri  cap.  v.  No.  79-81. 


368  TORTURE. 

be  tortured  a  third  time,  when  a  confession,  followed  as 
before  by  a  recantation,  released  him  from  further  torment, 
for  the  admirable  reason  that  nature  and  justice  alike 
abhorred  infinity.1  This  was  too  metaphysical  for  some 
jurists,  who  referred  the  whole  question  to  the  discretion 
of  the  judge,  with  power  to  prolong  the  series  of  alternate 
confession  and  retraction  indefinitely.2  Others  solved  the 
knotty  problem  by  judiciously  advising  that  in  the  uncer- 
tainty of  doubt  as  to  his  guilt,  the  prisoner  should  be 
soundly  scourged  and  turned  loose,  after  taking  an  oath 
not  to  bring  an  action  for  false  imprisonment  against  his 
tormentors  ;3  but,  according  to  some  authorities,  this  kind 
of  oath,  or  urpheda  as  it  was  called,  was  of  no  legal  value.4 
There  were  other  curious  inconsistencies  in  the  system 
which  manifest  still  more  clearly  the  real  estimate  placed 
on  confessions  under  torture.  If  the  torture  had  been  in- 
flicted by  an  over-zealous  judge  without  proper  preliminary 
evidence,  confession  amounted  legally  to  nothing,  even 
though  proof  were  subsequently  discovered.5  If,  on  the 
other  hand,  absolute  and  incontrovertible  proof  of  guilt 
were  had,  and  the  over-zealous  judge  tortured  in  surplusage 
without  extracting  a  confession,  the  offender  was  absolved.0 

1  Bernhardi  Diss.  Inaug.  cap.  i.  §  xi. 

2  Emer.  a  Rosbach,  op.  cit.  Tit.  v.  cap.  xviii.  No.  13.  So  Beccaria,  (De- 
litt.  e  Pene  §  xn.) — "Alcuni  dottori  ed  alcune  nazioni  non  permettono 
questa  infaine  petizione  di  principio  che  per  tre  volte  ;  altre  nazioni  ed  altri 
dottori  la  lasciano  ad  arbitrio  del  giudice." 

3  Zangeri  loc.  cit. 

4  Bernhardi,  cap.  I.  §  xii.     Cf.  Caroli  V.  Const.  Crim.  cap.  xx.  §  1. 
6  Zangeri  cap.  n.  No.  9-10;  cap.  v.  No.  19-28. 

G  Ibid.  cap.  v.  No  1-18. — Bigotry  and  superstition,  however,  did  not 
allow  their  victims  to  escape  so  easily.  In  accusations  of  sorcery,  if  appear- 
ances were  against  the  prisoner — that  is,  if  he  were  of  evil  repute,  if  he  shed 
no  tears  during  the  torture,  and  if  he  recovered  speedily  after  each  applica- 
tion— he  was  not  to  be  liberated  because  no  confession  could  be  wrung  from 
him,  but  was  to  be  kept  for  at  least  a  year,  "  squaloribus  carceris  mancipan- 
dus  et  cruciandus,  saepissime  etiam  examinandus,  praccipue  sacratioribus 
diebus." — Rickii  Defens.  Aq.  Probaj  cap.  i.  No.  22. 


AT  Ho  (MTV     OF     THE     SYSTEM.  869 

If,  again,  a  man  and  woman  were  tortured  <>n  an  accusation 
of  adultery  committed  with  each  other,  and  if  one  confessed 
while  the  other  did  not,  both  were  acquitted.1  Nothing  more 
contradictory  and  illogical  can  well  be  imagined,  and.  as 
if  to  crown  the  absurdity  of  the  whole,  torture  after  con- 
viction was  allowed  in  order  to  prevent  appeals  ;  and  if  t  be 
unfortunate,  at  the  place  of  execution,  chanced  to  assert 
his  innocence,  he  was  often  hurried  from  the  scaffold  to  the 
rack  in  obedience  to  the  theory  that  the  confession  must 
remain  unretracted.3  One  can  scarcely  repress  a  grim  smile 
at  finding  that  this  series  of  horrors  had  pious  defenders 
who  urged  that  a  merciful  consideration  for  the  offender's 
soul  required  that  he  should  be  brought  to  confess  his 
iniquities  in  order  to  secure  his  eternal  salvation.3 

The  atrocity  of  this  whole  system  of  so-called  criminal 
justice  is  forcibly  described  by  the  honest  indignation  of 
Augustin  Nicolas,  who,  in  his  judicial  capacity  under  Louis 
XIV.,  had  ample  opportunities  of  observing  its  practical 
working  and  results.  u  The  strappado,  so  common  in  Italy, 
and  which  yet  is  forbidden  under  the  Roman  law  .  .  .  The 
vigils  of  Spain,  which  oblige  a  man  to  support  himself  by 
sheer  muscular  effort  for  seven  hours,  to  avoid  sitting  on  a 
pointed  iron,  which  pierces  him  with  insufferable  pain ;  the 
vigils  of  Florence,  or  of  Marsiglio,  which  have  been  de- 
scribed above ;  our  iron  stools  heated  to  redness,  on  which 
we  place  poor  half-witted  women  accused  of  witchcraft, 
exhausted  by  frightful  imprisonment,  rotting  from  their 
dark  and  filthy  dungeons,  loaded  with  chains,  fleshless, 
and  half  dead  ;  and  we  pretend  that  the  human  frame  can 
resist  these  devilish  practices,  and  that  the  confessions 
which  our  wretched  victims  make  of  everything  that  may 
be  charged  against  them  are  true."4     Under  such  a  scheme 

1  Zangeri  cap.  v.  No.  53-61. 
3  Boden,  op.  cit.  Th.  v.  vi. 

3  Ibid. 

4  Dissert.  Mor.  et  Jurid.  sur  la  Torture,  p.  36-7. 


370  TORTURE. 

of  jurisprudence,  it  is  easy  to  understand  and  appreciate 
the  case  of  the  unfortunate  peasant,  sentenced  for  witch- 
craft, who,  in  his  dying  confession  to  the  priest,  admitted 
that  he  was  a  sorcerer,  and  humbly  welcomed  death  as  the 
fitting  retribution  for  the  enormous  crimes  of  which  he  had 
been  found  guilty,  but  pitifully  inquired  of  the  shuddering 
confessor  whether  one  could  not  be  a  sorcerer  without 
knowing  it.1 

We  have  seen  above  how  great  was  the  part  of  the  In- 
quisition in  introducing  and  moulding  the  whole  system 
of  torture  on  the  ruins  of  the  Roman  law.  Even  so,  in  the 
reconstruction  of  European  jurisprudence,  during  the  six- 
teenth and  seventeenth  centuries,  the  ardor  of  the  inquisi- 
torial proceedings  against  witchcraft,  and  the  panic  on  the 
subject  which  long  pervaded  Christendom,  had  a  powerful 
influence  in  familiarizing  the  minds  of  men  with  the  use  of 
torture  as  a  necessary  instrument  of  j  ustice,  and  in  autho- 
rizing its  employment  to  an  extent  which  now  is  almost 
inconceivable. 

From  a  very  early  period,  torture  was  recognized  as  in- 
dispensable in  all  trials  for  sorcery  and  magic.  In  358,  an 
edict  of  Constantius  decreed  that  no  dignity  of  birth  or 
station  should  protect  those  accused  of  such  offences  from 
its  application  in  the  severest  form.*  How  universal  its 
employment  thus  became  is  evident  from  a  canon  of  the 
council  of  Merida,  in  666,  declaring  that  priests,  when 
sick,  sometimes  accused  the  slaves  of  their  churches  of 
bewitching  them,  and  impiously  tortured  them  against  all 
ecclesiastical  rules.3  That  all  such  crimes  should  be  re- 
garded as  peculiarly  subjecting  to  the  last  extremity  of 
torture  all  suspected  of  them  is  therefore  natural,  and  its 

1  Nicolas,  p.  169.  3  Const.  7  Cod.  ix.  xviii. 

s  Similiter  et  quia  comperimus  aliquos  presbyteros  aegritudine  accidente, 
faiuilise  ecclesise  suse  crimen  imponere,  dicente  ex  ea  homines  aliquos  male- 
ficium  sibi  fecisse  eosque  sua  potestate  torquere,  et  per  multani  impietatem 
detrimentare. — Concil.  Emeritan,  ann.  666  can.  xv. 


SORCERY    AND    WITCHCRAFT.  371 

use  in  the  trials  of  witches  and  sorcerers  came  to  be  re- 
garded as  indispensable 

The  necessity  which  all  men  lVdt  that  these  crimes  should 
he  extirpated  with  merciless  severity,  and  the  impalpable 
nature  of  the  testimony  on  which  the  tribunals  had  mostly 
to  depend,  added  to  this  traditional  belief  in  the  fitness  of 
torture.  Witchcraft  was  considered  as  peculiarly  difficult 
of  proof,  and  torture  consequently  became  an  mi  failing 
resource  to  the  puzzled  tribunal.  Jacob  Rickius,  who,  as 
a  magistrate  during  an  epidemic  of  witchcraft,  at  the  close 
of  the  seventeenth  century,  had  the  fullest  practical  expe- 
rience on  the  subject,  complains  that  no  reliance  could  be 
] (laced  on  legal  witnesses  to  procure  conviction;1  and  Del 
Rio  only  expresses  the  general  opinion  when  he  avers  that 
torture  is  to  be  more  readily  resorted  to  in  witchcraft  than 
in  other  crimes,  in  consequence  of  the  extreme  difficulty  of 
its  proof.2 

Even  the  wide-spread  belief  that  Satan  aided  his  wor- 
shippers in  their  extremity  by  rendering  them  insensible 
to  pain  did  not  serve  to  relax  the  efforts  of  the  extirpators 
of  witchcraft,  though  they  could  hardly  avoid  the  con- 
clusion that  they  were  punishing  only  the  innocent,  and 
allowing  the  guilty  to  escape.  Various  means  they  em- 
ployed to  circumvent  the  arch-enemy,  of  which  the  one 
most  generally  adopted  was  that  of  shaving  the  whole  per- 
son carefully  before  applying  the  torture;3  but  notwith- 

1  Per  legales  testes  hujus  rei  ad  convincendum  fides  certa  haberi  non 
potest. — Rickii  Defens.  Aquao  Proboe  cap.  in.  No.  117. 

"  Idque  facilius  in  excepto  et  occulto  difficilisque  probationis  crimine 
nostro  sortilegii  adraiserim  quam  in  aliis. — Disquisit.  Magicar.  Lib.  v.  Sect, 
iii.  No.  8. 

3  Nicolas  (p.  145)  inveighs  with  honest  indignation  at  the  frightfully  in- 
decent outrages  to  which  female  prisoners  were  subjected  in  obedience  to 
this  superstition.  The  curious  reader  will  find  in  Del  Rio  (Lib.  v.  Sect,  ix.) 
ample  details  as  to  the  arts  of  the  Evil  One  to  sustain  his  followers  against 
the  pious  efforts  of  the  Inquisition.  There  was  so  general  a  belief  among 
enlightened  men  that  criminals  of  all  kinds  had  secrets  to  deaden  the  suffer- 


372  TORTURE. 

standing  all  the  precautions  of  the  most  experienced  exor 
cists,  we  find  in  the  bloody  farce  of  Urbain  Grandier  that 
the  fiercest  torments  left  him  in  capital  spirits  and  good 
humor.1  The  tender-hearted  Rickius  was  so  convinced  of 
this  source  of  uncertainty  that  he  was  accustomed  to  ad- 
minister the  cold  water  ordeal  to  all  the  miserable  old 
women  brought  before  him  on  such  charges,  but  he  is  careful 
to  inform  us  that  this  was  only  preparatory  proof,  to  enable 
him  with  a  safer  conscience  to  torture  those  who  were  so 
ill-advised  as  to  float  instead  of  sinking.3 

When  the  concentrated  energies  of  these  ingenious  and 
determined  law  dispensers  failed  to  extort  by  such  means 
a  confession  from  the  wretched  clowns  and  gossips  thus 
placed  at  their  mercy,  they  were  even  yet  not  wholly  at 
fault.  The  primitive  teachings  of  the  Inquisition  of  the 
thirteenth  century  were  not  yet  obsolete,  and  they  were 
instructed  to  treat  the  prisoner  kindly ;  to  introduce  into 
his  dungeon  some  prepossessing  agent  who  should  make 
friends  with  him  and  induce  him  to  confess  what  was  wanted 
of  him,  promising  to  influence  the  judge  to  pardon  ;  at  that 
moment  the  judge  is  to  enter  the  cell  and  to  promise  mercy, 
with  the  mental  reservation  that  his  mercy  should  be  shown 

ings  of  torture,  that  it  is  quite  likely  the  unfortunates  were  sometimes  able 
to  strengthen  their  endurance  with  some  anaesthetic. 

1  "Q'apres  qu'on  eut  lave  ses  jambes,  qui  avoient  ete  dechirees  par  la 
torture,  et  qu'on  les  eut  presentees  au  feu  pour  y  rapeller  quelque  peu  d'esprits 
et  de  vigueur,  il  ne  cessa  pas  de  s'entretenir  avec  ses  Gardes,  paT  des  dis- 
cours  peu  serieux  et  pleins  de  railleries;  qu'il  mangea  avec  apetit  et  but 
avec  plaisir  trois  ou  quatre  coups  ;  et  qu'il  ne  repandit  aucuns  larmes  en  souf- 
frant  la  question,  ni  apres  l'avoir  souflFerte,  lors  meme  qu'on  1'exorcisa  de 
l'exorcisme  des  Magiciens,  et  que  l'Exorciste  lui  dit  a  plus  de  cinquante  re- 
prises '  praecipio  ut  si  sis  innocens  effundas  lachrymas. '  " — Hist,  des  Diables 
de  Loudon,  pp.  157-8. 

2  Tunc  non  quaestioni  subjiciebantur  statim,  sed  pro  confortatione  prae- 
cidentium  indiciorum,  probam  aquae  adhibebamus  primitus,  non  ad  convin- 
cendam  earn  per  hinc,  sed  praeparandum  et  muniendum  torturao  viam. — 
Uickii  op.  cit.  cap.  i.  No.  24. 


SORCERY  AND  WITCHCRAFT.        373 

to  the  community  and  not  to  the  prisoner.'  Or,  still  fol- 
lowing the  ancient  traditions,  the  unhappy  wretch  was  to 
be  told  that  his  associate  prisoners  had  borne  testimony 
against  him,  in  order  to  induce  him  to  revenge  himself  by 
turning  witness  against  them.9 

When  the  law  thus  pitilessly  turned  all  the  chances 
Against  the  victim,  it  is  easy  to  understand  that  few 
escaped.  In  the  existing  condition  of  popular  frenzy  on 
the  subject,  there  was  no  one  but  could  feel  that  he  might 
at  any  moment  be  brought  under  accusation  by  personal 
enemies  or  by  unfortunates  compelled  on  the  rack  to  declare 
the  names  of  all  whom  they  might  have  seen  congregated 
at  the  witches'  sabbat.  We  can  thus  readily  comprehend 
the  feelings  of  those  who,  living  under  such  uncertainties, 
coolly  and  deliberately  made  up  their  minds  in  advance 
that,  if  chance  should  expose  them  to  suspicion,  they  would 
at  once  admit  everything  that  the  inquisitors  might  desire 
of  them,  preferring  a  speedy  death  to  one  more  lingering 
and  scarcely  less  certain.3  The  evil  fostered  with  such 
careful  exaggeration  grew  to  so  great  proportions  that  one 
judge,  in  a  treatise  on  the  subject,  boasted  of  his  zeal  and 
experience  in  having  dispatched  within  his  single  district 
nine  hundred  wretches  in  the  space  of  fifteen  years,  and 

1  Bodinus  went  so  far  as  to  authorize  the  judge  to  entrap  the  prisoner  with 
absolute  falsehoods — "falsis  promissis."  Del  Rio  (Lib.  v.  Sect,  x.)  loftily 
pronounces  this  inadmissible,  and  then  proceeds  to  draw  a  distinction  between 
dolum  malum  and  dolum  bonum.  He  forbids  a  lie,  but  advises  equivocation 
and  ambiguous  promises,  and  if  the  prisoner  is  deceived,  he  has  only  him- 
self to  thank  for  it — "  Poterit  judex  uti  sequivocatione  et  verbis  subdolis 
(citra  mendacium)  et  ainbigua  promissione  liberationis,  ut  reum  inducat  ad 
fatendum  veritatem."  He  quotes  from  Sprenger  the  device  alluded  to  in  the 
text — "judex  .  .  .  promittat  facere  gratiam,  subintelligendo  sibi  vel  reipub. 
in  cujus  conservationem  totum  quod  sit  est  gratiosum."  The  pun  upon  the 
word  "gratia,''  on  which  a  human  life  is  made  to  depend,  is  scarcely  trans- 
latable. 

-  Nicolas  (p.  144),  from  Bodin.  Lib.  iv. 

3  Father  Tanner  states  that  he  had  this  from  learned  and  experienced  men. 
(Nicolas,  p.  106.) 

32 


374  TORTURE. 

another  trustworthy  authority  relates  with  pride  that  in 
the  cliocess  of  Como  alone  as  many  as  a  thousand  had  been 
burnt  in  a  twelvemonth,  while  the  annual  average  was 
over  a  hundred.* 

In  this  long  history  of  legalized  cruelty  and  wrong,  the 
races  of  northern  Europe  are  mostly  exceptional.  Yet  it  is 
somewhat  remarkable  that  the  first  regular  mediaeval  code 
in  which  torture  is  admitted  as  a  means  of  investigation  is 
the  one  of  all  others  in  which  it  would  be  least  expected. 
The  earliest  extant  law  of  Iceland,  the  Gragas,  which  dates 
from  1119,  has  one  or  two  indications  of  its  existence, 
which  are  interesting  as  being  purely  autochthonic,  and  in 
no  sense  derivable,  as  in  the  rest  of  Europe,  from  the 
Roman  law.  The  character  of  the  people,  indeed,  and  of 
their  institutions  would  seem  to  be  peculiarly  incompatible 
with  the  use  of  torture,  for  almost  all  cases  were  submitted 
for  decision  to  juries  of  the  vicinage,  and,  when  this  was 
unsuitable,  resort  was  had  to  the  ordeal.  The  indigenous 
origin  of  the  custom,  however,  is  shown  by  the  fact  that 
while  it  was  used  in  but  few  matters,  the  most  prominent 
class  subjected  to  it  was  that  of  pregnant  women,  who  have 
elsewhere  been  spared  by  the  common  consent  of  even  the 
most  pitiless  legislators.  An  unmarried  woman  with  child, 
who  refused  to  name  her  seducer,  could  be  forced  to  do  so 
by  moderate  torments  which  should  not  break  or  discolor 
the  skin.3  When  the  inhabitants  of  a  district,  also,  refused 
to  deliver  up  a  man  claimed  as  an  outlaw  by  another  dis- 
trict, the}r  were  bound  to  torture  him  to  ascertain  the  truth 
of  the  charge3 — a  provision  doubtless  explicable  by  the 

*  Nicolas,  p.  164. 

3  "  Ita  torquatur  ut  nee  plagam  referat  nee  color  cutis  livescat." — Gragas, 
Festathattr  cap.  xxxiii.  The  object  of  this  was  to  enable  the  family  to  obtain 
the  fine  from  the  seducer,  and  to  save  themselves  the  expense  of  supporting  the 
child.  When  the  mother  confessed,  however,  additional  evidence  was  re- 
quired to  convict  the  putative  father. 

3  Ibid.  Vigslothi  cap.  cxi. 


THE    SCANDINAVIAN    NATIONS.  3?5 

important  part  occupied  by  outlawry  in  all  the  schemes  of 
Scandinavian  Legislation.  These  are  the  only  instances  in 
Which  it  is  permitted,  while  its  occasional  abuse  is  shown 
by  a  section  providing  punishment  for  its  illegal  employ- 
ment.1 Slaves,  moreover,  under  the  Icelandic,  as  under 
other  codes,  had  no  protection  at  law,  and  were  at  the 
mercy  of  their  masters."  These  few  indications  of  the 
liability  of  freemen,  however,  disappear  about  the  time 
when  the  rest  of  Europe  was  commencing  to  adopt  the  use 
of  torture.  In  the  "  Jarnsida,"  or  code  compiled  for  Ice- 
land by  Hako  Hakonsen  of  Norway,  in  1258,  there  is  no 
allusion  whatever  to  its  use. 

The  Scandinavian  nations,  as  a  whole,  did  not  admit 
torture  into  their  systems  of  jurisprudence.  The  institution 
of  the  jury  in  various  forms  was  common  to  all,  and  where 
proof  upon  open  trial  was  deficient,  they  allowed,  until  a 
comparatively  recent  date,  the  accused  to  clear  himself  by 
sacramental  purgation.  Thus,  in  the  Danish  laws  of  Wal- 
demar  II.,  to  which  the  date  of  1240  is  generally  assigned, 
there  is  a  species  of  permanent  jury,  sandemend,  as  well 
as  a  temporary  one,  nefninge,  and  torture  seems  to  have 
formed  no  part  of  judicial  proceedings.3  This  code  was  in 
force  until  1683,  when  that  of  Christiern  V.  was  promul- 
gated. It  is  probable  that  the  use  of  torture  may  have 
crept  in  from  Germany,  without  being  regularly  sanctioned, 
for  we  find  Christiern  forbidding  its  use  except  in  cases  of 
high  treason,  where  the  magnitude  of  the  offence  seems  to 
him  to  justify  the  infraction  of  the  general  rule.4    He,  how- 

1  Gragds,  Vigslothi  cap.  Ixxxviii. 

a  Schlegel,  Comment,  ad  Gragas  §  xxix. 

3  Leg.  Cimbric.  Woldemari  Lib.  II.  cap.  i.,  xl.  (Ed.  Ancher,  Hafniae,  1783). 

4  Christiani  V.  Jur.  Dame.  Lib.  I.  cap.  xx.  (Ed.  Weghorst,  Hafniae,  1698). 
"De  nemine  habenda  est  quastio,  nisi  propter  facinus  capite  sit  condem- 
natus  ;  excepto  laesae  majestatis  crimine,  quod  in  summo  gradu  admi^sum 
fuerit.  Hie  enim  causae  qualitas  impedimento  est  quominus  processus  ordi- 
narius  observari  possit." 

Senckenberg  (Corp.  Jur.  German.  T.  I.  Praef.  p.  lxxxvi.)  gives  the  chapter 


376  TORTURE. 

ever,  encouraged  one  of  its  greatest  abuses  in  permitting  it 
on  criminals  condemned  to  death. 

So,  in  Sweden,  the  code  of  Raguald,  compiled  in  1441 
and  in  force  until  1614,  during  a  period  in  which  torture 
flourished  in 'almost  every  European  state,  has  no  place  for 
it.  Trials  are  conducted  before  twelve  nempdarii,  or  jury- 
men, and  in  doubtful  cases  the  accused  is  directed  to  clear 
himself  by  oath  or  by  conjurators.  For  atrocious  crimes 
the  punishments  are  severe,  such  as  the  wheel  or  the  stake, 
but  inflictions  like  these  are  reserved  for  the  condemned.1 
Into  these  distant  regions  the  Roman  jurisprudence  pene- 
trated slowly,  and  the  jury  trial  was  an  elastic  institution 
which  adapted  itself  to  all  cases. 

To  the  same  causes  may  be  attributed  the  absence  of 
torture  from  the  Common  Law  of  England.  In  common 
with  the  other  Barbarian  races,  the  Anglo-Saxons  solved 
all  doubtful  questions  by  the  ordeal  and  wager  of  law,  and 
in  the  collection  known  as  the  laws  of  Henry  I.  a  prin- 
ciple is  laid  down  which  is  incompatible  with  the  whole 
theory  of  torture,  whether  used  to  extract  confession  or 
evidence.  A  confession  obtained  by  fear  or  fraud  is  pro- 
nounced invalid,  and  no  one  who  has  confessed  his  own 
crime  is  to  be  believed  with  respect  to  that  of  another.3 
Such  a  principle,  combined  with  the  gradual  growth  of 
the  trial  by  jury,  doubtless  preserved  the  law  from  the 
contamination  of  inquisitorial  procedure,  though,  as  we 

heads  of  a  code  in  Danish,  the  Keyser  Retenn,  furnished  to  him  hy  Ancher, 
in  which  cap.  iv.  and  v.  contain  directions  as  to  the  administration  of  torture. 
The  code  is  a  mixture  of  German,  civil,  and  local  law,  and  probably  was  in 
force  in  some  of  the  Germanic  provinces  of  Denmark. 

The  Frisian  code  of  1323  is  a  faithful  transcript  of  the  primitive  Barbarian 
jurisprudence.  It  contains  no  allusion  to  torture,  and  as  all  crimes,  except 
theft,  were  still  compounded  by  wehr-gilds,  it  may  safely  be  assumed  that 
extorted  confession  was  unknown  (Leges  Opstalbomicse  ann.  1323,  published 
by  Gartner,  Saxonum  leges  tres,  Lipsiae,  1730). 

1  Raguald.  Ingermund.  Leg.  Suecor.,  Stockholmise,  1623. 

2  Et  nemini  de  se  confesso  super  alienum  crimen  credatur  :  confessio  vero 
per  metum  vel  per  fraudem  extorta  non  valet. — LI.  Henrici  I.  cap.  v.  $   16. 


KNfil.AND.  377 

have  seen,  torture  was  extensively  employed  for  purposes 
of  extortion  by  marauders  and  lawless  nobles  during  pe- 
riods of  eivil  commotion.  Glanville  makes  no  allusion  to 
it,  and  though  Bracton  shows  a  wide  acquaintance  with  the 
revived  Roman  jurisprudence,  and  makes  extensive  use  of 
it  in  all  matters  where  it  could  be  advantageously  har- 
monized with  existing  institutions,  he  is  careful  to  abstain 
from  introducing  torture  into  criminal  procedure.1  A  clause 
in  Magna  Charta,  indeed,  has  been  held  by  high  authority 
to  inhibit  the  employment  of  torture,  but  it  has  no  direct 
allusion  to  the  subject,  which  was  not  a  living  question  at 
the  time,  and  was  probably  not  thought  of  by  any  of  the 
parties  to  that  transaction;  moreover,  it  was  not,  at  a 
later  period,  held  by  any  one  to  interfere  with  the  royal 
prerogative,  whenever  the  King  desired  to  test  with  the 
rack  the  endurance  of  his  loving  subjects.3 

Under  the  common  law,  therefore,  torture  had  no  exist- 
ence in  England,  and  the  character  of  the  national  institu- 

1  Many  interesting  details  on  the  influence  of  the  Roman  law  upon  that 
of  England  will  be  found  in  the  learned  work  of  Carl  GUterbock,  "  Bracton 
and  his  Relation  to  the  Roman  Law,"  recently  translated  by  Brinton  Coxe 
(Philadelphia,  1866).  The  subject  is  one  which  well  deserves  a  more  tho- 
rough consideration  than  it  is  likely  to  receive  at  the  hands  of  English 
writers. 

It  is  curious  to  observe  that  the  crimen  lasce  majestatis  makes  its  appear- 
ance in  Bracton  (Lib.  ill.  Tract,  ii.  cap.  3  §  1),  about  the  middle  of  the 
thirteenth  century,  earlier  than  in  France,  where,  as  we  have  seen,  the  first 
allusion  to  it  occurs  in  1315.  This  was  hardly  to  be  expected,  when  we  con 
sider  the  widely  different  influences  exerted  upon  the  jurisprudence  of  the 
two  countries  by  the  Roman  law. 

2  The  passage  which  has  been  relied  on  by  lawyers  is  chap.  xxx. :  "  Nullus 
liber  homo  capiatur.  vel  imprisonetur,  aut  dissaisiatur,  aut  utlagetur,  aut 
aliquo  modo  destruatur ;  nee  super  eum  ibimus,  nee  super  eum  mittemus, 
nisi  per  legale  judicium  parium  suorum,  vel  per  legem  terras. "  If  the  law 
just  above  quoted  from  the  collection  of  Henry  I.  could  be  supposed  to  be 
still  in  force  under  John,  then  this  might  possibly  be  imagined  to  bear  some 
reference  to  it;  but  it  is  evident  that  had  torture  been  an  existing  grievance, 
such  as  outlawry,  seizure,  and  imprisonment,  the  barons  would  have  been 
careful  to  include  it  in  their  enumeration  of  restrictions. 

32* 


378  TORTURE. 

tions  kept  at  bay  the  absorbing  and  centralizing  influences 
of  the  Roman  law.1  Yet  their  wide  acceptance  in  France, 
and  their  attractiveness  to  those  who  desired  to  wield  ab- 
solute authority,  gradually  accustomed  the  crown  and  the 
crown  lawyers  to  the  idea  that  torture  could  be  adminis- 
tered by  order  of  the  sovereign.  Sir  John  Fortescue,  wrho 
was  Lord  Chancellor  under  Henry  VI.,  inveighs  at  great 
length  against  the  French  law  for  its  cruel  procedures, 
ancl  with  much  satisfaction  contrasts  it  with  the  English 
practice,3  and  yet  he  does  not  deny  that  torture  was  occa- 
sionally used  in  England.3  An  instance  of  its  application 
in  1468  has  been  recorded,  which  resulted  in  the  execution 
of  Sir  Thomas  Coke,  Lord  Mayor  of  London;4  and  in  1485, 
Innocent  VIII.  remonstrated  with  Henry  VII.  respecting 
some  proceedings  against  ecclesiastics  who  were  scourged, 
tortured,  and  hanged.5 

Under  Henry  VIII.  and  his  children,  the  power  of  the 
crown  was  largely  extended,  and  the  doctrine  became 
fashionable  that,  though  no  one  could  be  tortured  for  con- 
fession or  evidence  by  the  law,  yet  outside  and  above 
the  law  the  royal  prerogative  was  supreme,  and  that  a 
warrant  from  the  King  in  Privy  Council  fully  justified  the 
use  of  the  rack  and  the  introduction  of  the  secret  inquisi- 
torial process,  with  all  its  attendant  cruelty  and  injustice. 
It  is  difficult  to  conceive  the  subserviency  which  could 
reconcile  men,  bred  in  the  open  and  manly  justice  of  the 

1  The  jealousy  with  which  all  attempted  encroachments  of  the  Roman  law 
were  repelled  is  manifested  in  a  declaration  of  Parliament  in  1388.  "Que  ce 
royalme  d'Engleterre  n'estait  devant  ces  heures,  ne  a  l'entent  du  roy  nostre 
dit  seignior  et  seigniors  du  parlement  unque  ne  serra  rule  et  governe  par  la 
ley  civill."— Rot.  Pari.,  11  Ric.  II.  ((iiiterbock,  op.  cit.  p.  13). 

2  Du  Cange,  s.  v.  Tortnra. 

3  See  Jardine's  "Reading  on  the  Use  of  Torture  in  the  Criminal  Law  of 
England,"  p.  7  (London,  1837),  a  condensed  and  sufficiently  complete 
account  of  the  subject  under  the  Tudors  and  Stuarts. 

4  Jardine,  loc.  cit. 

1  Partim  tormentis  subjecti,  partim  crudelissime  laniati,  et  partim  etiam 
furca  su?pensi  fuerant. — Wilkins  Concil.  III.  617. 


ENGLAND.  379 

common  law,  to  a  system  so  subversive  of  nil  the  principles 
in  which  they  had  been  trained.  Yet  the  loftiest  names  of 
the  profession  were  QOneerned  in  t  ran  suctions  which  they 
knew  to  be  in  contravention  of  the  laws  of  the  land. 

Sir  Thomas  Smith,  one  of  the  ornaments  of  the  Eliza- 
bethan bar, condemned  the  practice  as  not  only  illegal, but 
illogical.  "  Torment  or  question,  which  is  used  by  order 
of  the  civile  law  and  custome  of  other  countries,  ....  is 

not  used  in  England The  nature  of  Englishmen  is 

to  neglect  death,  to  abide  no  torment ;  and  therefore  hee 
will  confesse  rather  to  have  done  anything,  yea,  to  have 
killed  his  owne  father,  than  to  suffer  torment."  ,  And  yet, 
a  few  3rears  later,  we  find  the  same  Sir  Thomas  writing  to 
Lord  Burghley,  in  1571,  respecting  two  miserable  wretches 
whom  lie  was  engaged  in  racking  under  a  warrant  from 
Queen  Elizabeth.1 

In  like  manner,  Sir  Edward  Coke,  in  his  Institutes,  de- 
clares— "So,  as  there  is  no  law  to  warrant  tortures  in  this 
land,  nor  can  they  be  justified  by  any  prescription,  being 
so  lately  brought  in."  Yet,  in  1603,  there  is  a  warrant 
addressed  to  Coke  und  Fleming,  us  Attorney  und  Solicitor 
Generul,  directing  them  to  appty  torture  to  a  servant  of 
Lord  Hundsdon,  who  had  been  guilty  of  some  idle  speeches 
respecting  King  James,  and  the  resultant  confession  is  in 
Coke's  handwriting,  showing  that  he  personally  superin- 
tended the  examination.2 

Coke's  great  rival,  Lord  Bacon,  was  as  subservient  as 
his  contemporaries.  In  1619,  while  Chancellor,  we  find 
him  writing  to  King  James  concerning:  a  prisoner  confined 
in  the  Tower  on  suspicion  of  treason — "If  it  may  not  be 
done  otherwise,  it  is  fit  Peacock  be  put  to  torture,  lie 
deserveth  it  as  well  as  Peuchum  did."3 

1  Jardine,  op.  cit.  pp.  8-9,  24-5.  It  is  due  to  Sir  Thomas  to  add  that  he 
earnestly  begs  Lord  Burghley  to  release  him  from  so  uncongenial  an  employ- 
raent.  -  Ibid.  pp.  8,  47. 

a  Works,  Philadelphia,  1846,  III.  126.     Peacham  was  an  unfortunate  cler- 


380  TORTURE. 

As  in  other  countries,  so  in  England,  when  torture  was 
once  introduced,  it  rapidly  broke  the  bounds*  which  the 
prudence  of  the  Roman  lawgivers  had  established  for  it. 
Thus,  it  was  not  only  in  cases  of  high  treason  that  the 
royal  prerogative  was  allowed  to  transgress  the  limits  of 
the  law.  Matters  of  religion,  indeed,  in  those  times  of 
perennial  change,  when  dynasties  depended  on  dogmas, 
might  come  under  the  comprehensive  head  of  constructive 
treason,  and  be  considered  to  justify  the  torture  even  of 
women,  as  in  the  instance  of  Ann  Askew  in  1546  ;l  and  of 
monks  guilty  of  no  crime  but  the  endeavor  to  preserve 
their  monasteries  by  pretended  miracles;2  but  numerous 
cases  of  its  use  are  on  record,  which  no  ingenuity  can  re- 
move from  the  sphere  of  the  most  ordinary  criminal  busi- 
ness. Suspicion  of  theft,  murder,  horse-stealing,  embezzle- 
ment, and  other  similar  offences  was  sufficient  to  consign 
the  unfortunate  accused  to  the  tender  mercies  of  the  rack, 
the  Scavenger's  Daughter,"  and  the  manacles,  when  the 
aggrieved  person  had  influence  enough  to  procure  a  royal 

gyman  in  whose  desk  was  found  a  MS.  sermon,  never  preached,  containing 
some  unpalatable  reflections  on  the  royal  prerogative,  and  the  prerogative 
asserted  itself  by  putting  him  on  the  rack. 

1  Burnet,  Hist.  Reform.  Bk.  in.  pp.  341-2. 

Q  According  to  Nicander  Nucius  (Travels,  Camden  Soc.  1841),  pp.  58,  62, 
the  investigation  of  these  deceptions  with  the  severest  tortures,  Qst-rdvotc 
aPwrois,  was  apparently  the  ordinary  mode  of  procedure. 

3  Sir  William  Skevington,  a  lieutenant  of  the  Tower,  under  Henry  VIII., 
immortalized  himself  by  reviving  an  old  implement  of  torture,  consisting 
of  an  iron  hoop,  in  which  the  prisoner  was  bent,  heels  to  hams  and  chest  to 
knees,  and  thus  crushed  together  unmercifully.  It  obtained  the  nickname 
of  Skevington's  daughter,  corrupted  in  time  to  Scavenger's  Daughter. 
Among  other  sufferers  from  its  embraces  was  an  unlucky  Irishman,  named 
Myagh,  whose  plaint,  engraved  on  the  wall  of  his  dungeon,  is  still  among 
the  curiosities  of  the  Tower  : — 

"  Thomas  Miagh,  which  liethe  here  alone, 
That  fayne  wold  from  hens  begon  ; 
By  torture  straunge  mi  truth  was  tryed, 
Yet  of  my  libertie  denied. 
1581.     Thomas  Myngh." — Jardine,  op.  cit.  pp.  15,  30. 


ENGLAND.  881 

a\ arrant;  nor  were  those  proceedings  confined  to  the  secret 
dungeons  of  the  Tower,  for  the  records  show  that  torture 
began  to  be  habitually  applied  in  the  Bridewell.    Jardine, 

however,  states  that  this  especially  dangerous  extension  of 
the  abuse  appears  to  have  ceased  with  the  death  of  Eliza- 
beth, and  that  no  trace  of  the  torture  of  political  prisoners 
can  be  found  later  than  the  year  1640.1  The  royal  pre- 
rogative had  begun  to  be  too  severely  questioned  to  render 
Such  manifestations  of  it  prudent,  and  the  Great  Rebellion 
settled  the  constitutional  rights  of  the  subject  on  too  secure 
a  basis  for  even  the  time-serving  statesmen  of  the  Restora- 
tion to  venture  on  a  renewal  of  the  former  practices.  Yet 
how  nearly,  at  one  time,  it  had  come  to  be  engrafted  on 
the  law  of  the  land  is  evident  from  its  being  sufficiently 
recognized  as  a  legal  procedure  for  persons  of  noble  blood 
to  claim  immunity  from  it,  and  for  the  judges  to  admit 
that  claim  as  a  special  privilege.  In  the  Countess  of 
Shrewsbury's  case,  the  judges,  among  whom  was  Sir  Ed- 
ward Coke,  declared  that  there  was  a  "  privilege  which  the 
law  gives  for  the  honor  and  reverence  of  the  nobility,  that 
their  bodies  are  not  subject  to  torture  in  causa  criminis 
laesae  mojestatis  ;"  and  no  instance  is  on  record  to  disprove 
the  assertion.2 

In  one  class  of  offences,  however,  torture  was  frequently 
used  to  a  later  date,  and  without  requiring  the  royal  inter- 
vention. As  on  the  Continent,  sorcery  and  witchcraft 
were  regarded  as  crimes  of  such  peculiar  atrocity,  and  the 
aversion  they  excited  was  so  universal  and  intense,  that 
those  accused  of  them  were  practically  placed  beyond  the 
pale  of  the  law,  and  no  means  were  considered  too  severe 
to  secure  the  conviction  which  in  many  cases  could  only  be 
obtained  by  confession.  We  have  seen  that  among  the 
refinements  of  Italian  torture,  the  deprivation  of  sleep  for 
forty  hours  was  considered  by  the  most  experienced  autho- 

1  Jardine,  pp.  5.3,  57-8.  ■  Op.  cit.  p.  65. 


382  TORTURE. 

rities  on  the  subject  to  be  second  to  none  in  severity  and 
effectiveness.  It  neither  lacerated  the  flesh,  dislocated  the 
joints,  nor  broke  the  bones,  and  yet  few  things  could  be 
conceived  as  more  likely  to  cloud  the  intellect,  break  down 
the  will,  and  reduce  the  prisoner  into  a  frame  of  mind  in 
which  he  would  be  ready  to  admit  anything  that  the  ques- 
tions of  his  examiners  might  suggest  to  him.  In  English 
witch  trials,  this  method  of  torture  was  not  infrequently 
resorted  to,  without  the  limitation  of  time  to  which  it  was 
restricted  by  the  more  experienced  jurists  of  Italy.1 

In  Scotland,  torture,  as  a  regular  form  of  judicial  inves- 
tigation, was  of  late  introduction.  In  the  various  codes 
collected  by  Skene,  extending  from  an  early  period  to  the 
commencement  of  the  fifteenth  century,  there  is  no  allusion 
whatever  to  it.  In  the  last  of  these  codes,  adopted  under 
Robert  III.,  by  the  Parliament  of  Scotland  in  1400,  the 
provisions  respecting  the  wager  of  battle  show  that  torture 
would  have  been  superfluous  as  a  means  of  supplementing 
deficient  evidence.3  The  influence  of  the  Roman  law,  how- 
ever, though  late  in  appearing,  was  eventually  much  more 
deeply  felt  in  Scotland  than  in  the  sister  kingdom,  and 
consequently  torture  at  length  came  to  be  regarded  as  an 
ordinary  resource  in  doubtful  cases.  In  the  witch  perse- 
cutions, especially,  which  in  Scotland  rivalled  the  worst 
excesses  of  the  Inquisition  of  Germany  and  Spain,  it  was 
carried  to  a  pitch  of  frightful  cruelty  which  far  transcended 

1  Lecky,  Hist,  of  Rationalism,  Am.  ed.  I.  122.— In  his  very  interesting 
work,  Mr.  Lecky  mentions  a  case,  occurring  under  the  Commonwealth,  of 
an  aged  clergyman  named  Lowes,  who,  after  an  irreproachable  pastorate  of 
fifty  years,  fell  under  suspicion.  "The  unhappy  old  man  was  kept  awake 
for  several  successive  nights,  and  persecuted  'till  he  was  weary  of  his  life, 
and  was  scarcely  sensible  of  what  he  said  or  did.'  He  was  then  thrown 
into  the  water,  condemned,  and  hung." — Ibid.  p.  126.  The  "pricking," 
or  thrusting  of  pins  into  all  parts  of  the  body,  in  order  to  discover  the  in- 
sensible spot,  which,  according  to  popular  belief,  was  one  of  the  essential 
peculiarities  of  the  witch,  was  also  a  kind  of  indirect  torture. 

2  Statut.  Roberti  III.  cap.  xvi.  (Skene). 


SCOTLAND.     <j  :js:j 

the  limits  assigned  to  it  elsewhere.1  Indeed,  it  is  difficult 
to  believe  thai  the  accounts  which  have  been  preserved  to 
us  of  these  terrible  scenes  are  not  exaggerated.  No  cruelty 
is  too  great  for  the  conscientious  persecutor  who  believes 
thai  he  is  avenging  his  God,  but  the  limftless  capacity  of 
human  nature  for  inflicting  is  not  complemented  by  a 
limitless  capacity  of  endurance  on  the  part  of  the  victim; 
and  well  authenticated  as  the  accounts  of  the  Scottish 
witch-trials  may  be,  they  seem  to  transcend  the  possibility 
of  human  strength.2  Torture  thus  maintained  its  place  in 
the  law  of  Scotland  as  long  as  the  kingdom  preserved  the 
right  of  self-legislation,  and  it  was  not  abolished  until  after 
the  Union,  when,  in  1709,  the  United  Parliament  made 

1  Thus  the  vigils,  which  elsewhere  consisted  simply  in  keeping  the  ac- 
cused awake  for  forty  hours  hy  the  simplest  modes,  in  Scotland  were  fear- 
fully aggravated  by  a  band  of  iron  fastened  around  the  face,  with  four  di- 
vergent points  thrust  into  the  mouth.  With  this  the  accused  was  secured 
immovably  to  a  wall,  and  cases  are  on  record  in  which  this  insupportable 
torment  was  prolonged  for  five  and  even  for  nine  days. — Lecky,  op.  cit.  I. 
145-6. 

a  I  quote  from  Mr.  Lecky  (p.  147),  who  gives  as  his  authority  "  Pitcairn's 
Criminal  Trials  of  Scotland." 

"But  others  and  perhaps  worse  trials  were  in  reserve.  The  three  prin- 
cipal that  were  habitually  applied  were  the  penniwinkis,  the  boots,  and  the 
caschielawis.  The  first  was  a  kind  of  thumbscrew  ;  the  second  was  a  frame 
in  which  the  leg  was  inserted,  and  in  which  it  was  broken  by  wedges  driven 
in  by  a  hammer  ;  the  third  was  also  an  iron  frame  for  the  leg,  which  was 
from  time  to  time  heated  over  a  brazier.  Fire  matches  were  sometimes 
applied  to  the  body  of  the  victim.  We  read,  in  a  contemporary  legal  register, 
of  one  man  who  was  kept  for  forty-eight  hours  in  '  vehement  tortour'  in 
the  caschielawis  ;  and  of  another  who  remained  in  the  same  frightful  machine 
for  eleven  days  and  eleven  nights,  whose  legs  were  broken  daily  for  fourteen 
days  in  the  boots,  and  who  was  so  scourged  that  the  whole  skin  was  torn 
from  his  body."     These  cases  occurred  in  1596. 

These  horrors  are  almost  equalled  by  those  of  another  trial  in  which  a 
Dr.  Fian  was  accused  of  having  caused  the  storms  which  endangered  the 
voyage  of  James  I.  from  Denmark  in  1590.  James  personally  superintended 
the  torturing  of  the  unhappy  wretch,  and  after  exhausting  all  the  torments 
known  to  the  skill  and  experience  of  the  executioners,  he  invented  new 
ones.  All  were  vain,  however,  and  the  victim  was  finally  burnt  without 
confessing  his  ill-deeds.     {Ibid.  p.  123.) 


384  TORTURE. 

haste,  at  its  second  session,  to  pass  an  act  for  "  improving 
the  Union,"  by  which  it  was  done  away  with.1 

A  system  of  procedure,  which  could  lead  to  results  so 
deplorable  as  tlfose  which  we  have  seen  accompany  it 
everywhere,  could  scarcely  fail  to  arouse  the  opposition  of 
independent  men  who  were  not  swayed  by  reverence  for  pre- 
cedent or  carried  away  by  popular  impulses.  Accordingly, 
an  occasional  voice  was  raised  in  denunciation  of  the  use 
of  torture.  The  sceptic  of  the  sixteenth  century,  Mon- 
taigne, for  instance,  was  too  cool  and  clear-headed  not  to 
appreciate  the  vicious  principle  on  which  it  was  based,  and 
he  did  not  hesitate  to  stamp  it  with  his  reprobation.  u  To 
tell  the  truth,  it  is  a  means  full  of  uncertainty  and  danger ; 
what  would  we  not  say,  what  would  we  not  do  to  escape 
suffering  so  poignant?  whence  it  happens  that  when  a 
judge  tortures  a  prisoner  for  the  purpose  of  not  putting  an 
innocent  man  to  death,  he  puts  him  to  death  both  innocent 

and  tortured Are  you  not  unjust  when,  to  save  him 

from  being  killed,  you  do  worse  than  kill  him  ?'"  In  1624, 
the  learned  Johann  Graefe,  in  his  "  Tribunal  Reformatum," 
argued  forcibly  in  favor  of  its  abolition.  When  the  French 
Ordonnance  of  1610  was  in  preparation,  various  magistrates 
of  the  highest  character  and  largest  experience  gave  it  as 

1  7  Anne  c.  21. — While  thus  legislating  for  the  enlightenment  of  Scotland, 
the  English  majority  took  care  to  retain  the  equally  barbarous  practice  of 
the  peine  forte  et  dure.  This  was  not  strictly  a  torture  for  investigation, 
but  a  punishment,  which  was  inflicted  on  those  who  refused  to  plead  either 
guilty  or  not  guilty.  After  its  commencement,  the  unfortunate  wretch  was 
not  allowed  to  plead,  but  was  kept  under  the  press  until  death,  "donee 
oneris,  frigoris  atque  famis  cruciatu  extinguitur." — See  Hale,  Placit.  Coron. 
c.  xliii.  This  relic  of  barbarism  was  not  abolished  until  1772,  by  12  Geo. 
III.  c.  20. 

"  Essais,  Liv.  n.  chap.  v. — Montaigne  illustrates  his  position  by  a  story 
from  Froissart,  who  relates  that  an  old  woman  complained  to  Bajazet  that 
a  soldier  had  foraged  on  her.  The  Turk  summarily  disposed  of  the  soldier's 
denial  by  causing  his  stomach  to  be  opened.  He  proved  guilty — but  what 
had  he  been  found  innocent? 


R  E  M  O  N  S  T  It  A  N  C  E  . 

their  fixed  opinion  that  torture  was  useless,  that  it  rarely 
succeeded  in  eliciting  the  truth  from  the  accused,  and  that 
it  ought  to  be  abolished.1  Towards  the  close  of  the  century, 
various  writers  took  up  the  question.  The  best  known  of 
these  was  perhaps  Augustin  Nicolas,  who  has  been  fre- 
quently referred  to  above,  and  who  argued  with  more  zeal 
and  learning  than  skill  against  the  whole  system,  but  espe- 
cially against  it  as  applied  by  the  Inquisition  in  cases  of 
witchcraft.3  In  1692,  von  Boden,  in  a  work  alluded  to  in 
the  preceding  pages,  inveighed  against  its  abuses,  while 
admitting  its  utility  in  many  classes  of  crimes.  In  1*705, 
at  the  University  of  Halle,  Martin  Bernhardi  of  Pomerania, 
a  candidate  for  the  doctorate,  in  his  inaugural  thesis, 
argued  with  much  vigor  in  favor  of  abolishing  it,  and  the 
dean  of  the  faculty,  Christian  Thomas,  acknowledged  the 
validity  of  his  reasoning,  though  expressing  doubts  as  to 
the  practicability  of  a  sudden  reform.  Bernhardi  states  that 
in  his  time  it  was  no  longer  employed  in  Holland,  and  its 
disuse  in  Utrecht  he  attributes  to  a  case  in  which  a  thief 
procured  the  execution,  after  due  torture  and  confession, 
of  a  shoemaker,  against  whom  he  had  brought  a  false 
charge  in  revenge  for  the  refusal  of  a  pair  of  boots.3 

These  efforts  had  little  effect,  but  they  manifest  the  pro- 

1  Des  magistrats  recommendables  par  une  grande  capacity  et  par  une 
experience  consommee,  s'etant  expliques  sur  ce  genre  de  question,  auroient 
declare'  qu'elle  leur  avoit  toujours  semblc-  inutile,  qu'il  etoit  rare  que  la  ques- 
tion prcparatoire  eut  tire  la  verite  de  la  bouche  d'un  accuse\  et  qu'il  y  avoit 
de  fortes  raisons  pour  en  supprimer  l'usage. — Declaration  du  24  Aoflt,  1780 
(Isambert,  XXVII.  374). 

u  Nicolas  is  careful  to  assert  his  entire  belief  in  the  existence  of  sorcery  and 
his  sincere  desire  for  its  punishment,  and  he  is  indignant  at  the  popular 
feeling  which  stigmatized  those  who  wished  for  a  reform  in  procedure  as  "  avo- 
cats  des  sorciers." 

3  Bernhardi  Diss.  Inaug.  cap.  n.  §§  iv.,  x. — Bernhardi  ventured  on  the 
use  of  very  decided  language  in  denunciation  of  tbe  system. — "  Injustam, 
iniquam,  fallacem,  insignium  malorum  promotricem,  et  deniqne  orani  divini 
testimonii  specie  destitutam  esse  hanc  violentam  torturam  et  proinde  ex  foris 
Christianorum  rejiciendam  intrepide  assero."  (Ibid.  cap.  i.  §  1.) 

33 


386  TORTURE. 

gress  of  enlightenment,  and  doubtless  paved  the  way  for 
change,  especially  in  the  Prussian  territories.  Yet,  in  1130, 
we  find  the  learned  Baron  Senckenberg  reproducing  Z  an- 
ger's treatise,  not  as  an  archaeological  curiosity,  but  as  a 
practical  text-book  for  the  guidance  of  lawyers  and  judges. 
Ten  years  later,  however,  the  process  of  reform  began  in 
earnest.  Frederic  the  Great  succeeded  to  the  throne  of 
Prussia,  May  31,  1740.  Few  of  his  projects  of  universal 
philanthropy  and  philosophical  regeneration  of  human 
nature  survived  the  hardening  experiences  of  royal  ambi- 
tion, but,  while  his  power  was  yet  in  its  first  bloom,  he 
made  haste  to  get  rid  of  this  relic  of  mediaeval  barbarism. 
It  was  almost  his  earliest  official  act,  for  the  cabinet  order 
abolishing  torture  is  dated  June  3d.1  Yet  even  Frederic 
could  not  absolutely  shake  off  the  traditional  belief  in  its 
necessity  when  the  safety  of  the  State  or  of  the  head  of  the 
State  was  concerned.  Treason  and  rebellion  and  some 
other  atrocious  crimes  were  excepted  from  the  reform ;  and 
in  1752,  at  the  instance  of  his  high  chancellor,  Cocceji,  by 
a  special  rescript,  he  ordered  two  citizens  of  Oschersleben 
to  be  tortured  on  suspicion  of  robbery.2  With  singular 
inconsistency,  moreover,  torture  in  a  modified  form  was 
long  permitted  in  Prussia,  not  precisely  as  a  means  of  in- 
vestigation, but  as  a  sort  of  punishment  for  obdurate 
prisoners  who  would  not  confess,  and  as  a  means  of  mark- 
ing them  for  subsequent  recognition.3  It  is  evident  that 
the  abrogation  of  torture  did  not  carry  with  it  the  removal 
of  the  evils  of  the  inquisitorial  process. . — 

1  Carlyle,  Hist.  Friedrich  II.  Book  xi.  ch.  i. 

2  I  find  this  statement  in  an  account  by  G.  F.  Giinther  (Lipsise,  1838)  of 
the  abolition  of  torture  in  Saxony. 

3  Giinther,  op.  cit. — It  appears  that  the  authorities  of  Leipzig,  in  1769, 
when  asked  their  opinion  on  the  subject,  reported  their  approval  of  the  plan 
then  followed  in  the  Prussian  dominions. — "  In  terris  Borussicis  tormenta 
non  plane  esse  abrogata,  sed  interdum  adhuc  adhiberi,  non  tantum  ut  rei 
facinora  commissa  confiteri  cogantur,  sed  etiam  ne,  qui  pertinaciter  nega- 
rent,  plane  impunes  evaderent ;  imo  interdum  torqueri  quasi  memoriae  causa, 
videlicet  ut  nefarii  homines,  si  rursus  deliquerent,  facilius  cognoscerentur." 


A  BBOG  AT  ION.  381 

When  tin*  royal  philosopher  <>r  Europe  thus  halted  in 
the  reform,  it  is  not  aingalar  that  the  more  conservative 
monarohfl  around  him  should  have  paused  before  commit- 
ting themselves  to  so  great  an  innovation.  From  1710  to 
1783,  Saxony  was  engaged  in  a  thorough  remodelling  of  her 
system  of  criminal  jurisprudence,  in  which  the  whole  appa- 
ratus of  torture  was  swept  away ;  and  in  Switzerland  and  Aus- 
tria it  shared  a  Like  fate  about  the  same  time.  In  Russia, 
the  Empress  Catherine,  in  1762,  removed  it  from  the  jurisdic- 
tion of  the  inferior  courts,  where  it  had  been  greatly  abused ; 
in  1767,  by  a  secret  order,  it  was  restricted  to  cases  in 
which  the  confession  of  the  accused  proved  actually  indis- 
pensable, and  even  in  these  it  was  only  permitted  under 
special  commands  of  governors  of  provinces.1  These  limita- 
tions naturally  soon  rendered  it  almost  obsolete,  and  it  was 
finally  abolished  in  1801.  Yet,  in  some  of  the  states  of 
Central  Europe,  the  progress  of  enlightenment  was  wonder- 
fully slow.  Torture  continued  to  disgrace  the  jurispru- 
dence of  Wirtemberg  and  Bavaria  until  1806  and  1807  ;  and 
even  the  Napoleonic  wars  were  unable  to  eradicate  it,  for 
Hanover  retained  it  until  1822,  and  Baden  until  1831.3 

Even  France  had  maintained  a  conservatism  which  may 
seem  surprising  in  that  centre  of  the  philosophic  specula- 
tion of  the  eighteenth  century.  Her  leading  writers  had 
not  hesitated  to  condemn  it.  In  the  "Esprit  des  Lois," 
published  in  1748,  Montesquieu  stamped  his  reprobation 
on  the  system  with  a  quiet  significance  which  showed  that 
he  had  on  his  side  all  the  great  thinkers  of  the  age,  and  that 
he  felt  argument  to  be  mere  surplusage.3     Voltaire  did  not 

1  Du  Boys,  Droit  Criminel  des  Peuples  Modernes,  I.  620. 

a  Jardine,  Use  of  Torture  in  England,  p.  3. 

3  Tant  d'habiles  gens  et  tant  de  beaux  genies  ont  ecrit  contre  cette  pra- 
tique que  je  n'ose  parler  apres  eux.  J'allois  dire  qu'elle  pourroit  convenir 
dans  les  gouvernements  despotiques  ;  oa  tout  qui  inspire  la  crainte  entre 
plus  dans  les  ressorts  du  gouvernement :  j'nllois  dire  que  les  esclaves,  chez 

les  Grecs  et  chez  les  Rotnains  Mais  j'entends  la  voix  de  la  nature  qui 

crie  contre  raoi — Liv.  vi.  ch.  xvii. 


388  TORTURE. 

allow  its  absurdities  and  incongruities  to  escape,  and  in 
1T?T  he  addressed  an  earnest  request  to  Louis  XVI.  to 
include  it  among  the  subjects  of  the  reforms  which  marked 
the  opening  of  his  reign.1  Yet  it  was  not  until  1180  that 
the  question  preparatoire  was  abolished  by  a  royal  edict 
which,  in  a  few  weighty  lines,  indicated  that  only  the  reve- 
rence for  traditional  usage  had  preserved  it  so  long.3  It  is 
probable,  however,  that  this  reform  was  not  strictly  carried 
out,  for,  in  1188,  another  ordonnance  commanded  its  ob- 
servance, which  would  hardly  have  been  necessary  had  not 
some  additional  sanction  been  found  requisite.3  The  ques- 
tion definitive  or  prealable,  by  which  the  prisoner  after 
condemnation  was  again  tortured  to  discover  his  accom- 
plices, still  remained  until  IT 88,  when  it,  too,  was  abolished, 
at  least  temporarily.  It  was  pronounced  uncertain,  cruel 
to  the  convict  and  perplexing  to  the  judge,  and,  above  all, 
dangerous  to  the  innocent  whom  the  prisoner  might  name 
in  the  extremity  of  his  agony  to  procure  its  cessation,  and 
whom  he  would  persist  in  accusing  to  preserve  himself 
from  its  repetition.  Yet,  with  strange  inconsistency,  the 
abolition  of  this  cruel  wrong  was  only  provisional,  and  its 
restoration  was  threatened  in  a  few  years,  if  the  tribunals 
should  deem  it  necessary.4    When  those  few  short  years 

1  Cheruel,  Diet.  Hist,  des  Institutions  de  la  France,  P.  II.  p.  1220  (Paris, 
1855). 

2  Declaration  du  24  Aout  1780  (Isambert,  XXVII.  373). 

3  Declaration  du  3  Mai  1788,  art.  8.  "Notre  declaration  du  24  Aout  sera 
executee"  (Isambert,  XXIX.  532). 

'  Ibid.  (Isambert,  XXIX.  529).  It  is  noteworthy,  as  a  sign  of  the  temper 
of  the  times,  on  the  eve  of  the  convocation  of  the  Notables,  that  this  edict, 
which  introduced  various  ameliorations  in  criminal  procedure,  and  promised 
a  more  thorough  reform,  invites  from  the  community  at  large  suggestions  on 
the  subject,  in  order  that  the  reform  may  embody  the  results  of  public 
opinion — "Nous  eleverons  ainsi  au  rang  des  lois  les  resultats  de  Topinion 
publique."     This  was  pure  democratic  republicanism  in  an  irregular  form. 

The  edict  also  indicates  an  intention  to  remove  another  of  the  blots  on  the 
criminal  procedure  of  the  age,  in  a  vague  promise  to  allow  the  prisoner  the 
privilege  of  counsel. 


ABROGATION. 

oame  around,  they  dawned  On  a  now  France,  from  which 
the  old  systems  had  boon  swept  away  as  by  the  besom  of 
destruction  ;  and  torture  as  an  element  of  criminal  jurispru- 
dence was  a  thing  of  the  past.  By  the  decree  of  October 
9th,  1789,  it  was  abolished  forever. 

In  Italy,  Beccaria,  hi  1764,  took  occasion  to  devote  a  few 
pages  of  his  treatise  on  crimes  and  punishments  to  the  sub- 
ject of  torture,  and  its  illogical  cruelty  could  not  well  be 
exposed  with  more  terseness  and  force.1  It  was  probably 
due  to  the  movement  excited  by  this  work  that  in  1786  tor- 
ture was  formally  abolished  in  Tuscany.  Yet  Italy,  which 
was  the  first  to  revive  its  use  in  the  Middle  Ages,  was  the 
last  to  abandon  it.  Unless  we  may  disbelieve  all  that  is 
told  of  the  means  adopted  to  preserve  legitimacy  against 
revolutionism  during  the  interval  between  Napoleon  and 
Garibaldi,  the  dungeons  of  Naples  and  Palermo  may  boast 
of  being  the  last  European  refuge  of  this  relic  of  brutal  and 
unreasoning  force. 

In  casting  a  retrospective  glance  over  this  long  history 
of  cruelty  and  injustice,  it  is  curious  to  observe  that  Chris- 
tian communities,  where  the  truths  of  the  Gospel  were 
received  with  unquestioning  veneration,  systematized  the 
administration  of  torture  with  a  cold-blooded  ferocity 
unknown  to  the  legislation,  of  the  heathen  nations  whence 
they  derived  it.  The  careful  restrictions  and  safeguards, 
with  which  the  Roman  jurisprudence  sought  to  protect 
the  interests  of  the  accused,  contrast  strangely  with  the 
reckless  disregard  of  every  principle  of  justice  which  sullies 
the   criminal   procedure   of   Europe   from   the   thirteenth 

1  Dei  Delitti  e  delle  Pene  §  xn. — The  fundamental  error  in  the  prevalent 
system  of  criminal  procedure  is  well  exposed  in  Beccaria's  remark  that  a 
mathematician  would  he  better  than  a  legist  for  the  solution  of  the  essential 
problem  in  criminal  trials — "  Data  la  forza  dei  muscoli  e  la  sensibilita,  delle 
fibre  di  un  innocente,  trovare  il  grado  di  dolore  che  lo  fara  confessar  reo  di 
un  d.i to  delitto." 

33* 


390  TORTURE. 

almost  to  the  nineteenth  century.  From  this  no  race  or 
religion  was  exempt.  What  the  Calvinist  suffered  in  Flan- 
ders, he  inflicted  in  Scotland  j  what  the  Catholic  enforced 
in  Italy,  he  endured  in  England;  nor  did  either  of  them 
deem  that  he  was  forfeiting  his  share  in  the  Divine  Evangel 
of  peace  on  earth  and  goodwill  to  men. 

The  mysteries  of  the  human  conscience  and  of  human 
motives  are  well  nigh  inscrutable,  and  it  may  seem  shocking 
to  assert  that  these  centuries  of  unmitigated  wrong  are 
directly  traceable  to  that  religion  of  which  the  second 
great  commandment  was  that  man  should  love  his  neighbor 
as  himself.  Yet  so  it  was.  The  first  commandment,  to 
love  God  with  all  our  heart,  when  perverted  by  supersti- 
tion, gave  a  strange  direction  to  the  teachings  of  Christ. 
For  ages,  the  assumptions  of  an  infallible  church  had  led 
men  to  believe  that  the  interpreter  was  superior  to  Scrip- 
ture. Every  expounder  of  the  holy  text  felt  in  his  inmost 
heart  that  he  alone,  with  his  fellows,  worshipped  God  as 
God  desired  to  be  worshipped,  and  that  every  ritual  but 
his  own  was  an  insult  to  the  Divine  nature.  Outside  of  his 
own  communion  there  was  no  escape  from  eternal  perdition, 
and  the  fervor  of  religious  conviction  thus  made  persecu- 
tion a  duty  to  God  and  man.  This  led  the  Inquisition,  as 
we  have  seen,  to  perfect  a  system  of  which  the  iniquity  was 
complete.  Thus  commended,  that  system  became  part  and 
parcel  of  secular  law,  and  when  the  Reformation  arose,  the 
habits  of  thought  which  ages  had  consolidated  were  uni- 
versal. The  boldest  Reformers  who  shook  off  the  yoke  of 
Rome,  as  soon  as  they  had  attained  power,  had  as  little 
scruple  as  Rome  itself  in  rendering  obligatory  their  inter- 
pretation of  divine  truth,  and  in  applying  to  secular  as  well 
as  to  religious  affairs  the  cruel  maxims  in  which  they  had 
been  educated. 

Yet,  in  the  general  enlightenment  which  caused  and 
accompanied  the  Reformation,  there  passed  away  gradually 
the  necessity  which  had  created  the  rigid  institutions  of 


PROGRESS    OP    CIVILIZATION,  391 

the  Middle  Ages.  Those  institutions  had  fulfilled  their 
mission,  and  the  savage  tribes  thai  had  broken  down  the 
worn-out  civilization  of  Rome  were  at  last  becoming  fitted 
for  I  higher  civilization  than  the  world  had  yet  seen,  wherein 
the  preoepts  of  the  Gospel  might  at  length  find  practical 
expression  and  realization.  For  the  first  time,  in  the  his- 
tory of  man,  the  universal  love  and  charity  which  lie  at 
the  foundation  of  Christianity  are  recognized  as  the  ele- 
ments on  which  human  society  should  be  based.  Weak 
and  erring  as  we  are,  and  still  far  distant  from  the  ideal  of 
the  Saviour,  yet  are  we;  approaching  it,  even  if  our  steps 
are  painful  and  hesitating.  In  the  slow  evolution  of  the 
centuries,  it  may  only  be  by  comparing  distant  periods  that 
we  can  mark  our  progress;  but  progress  nevertheless 
exists,  and  future  generations,  perhaps,  may  be  able  to 
emancipate  themselves  wholly  from  the  cruel  and  arbitrary 
domination  of  superstition  and  force. 


INDEX. 


Abingdon,   Abbey  of,  ordeal  of 

lot  used  by,  244 

miraculous  cross,  248 

Abuses  of  the  ordeal,  265,  272 

of  torture,  369 

Accusatorial  conjurators,  67 

Accusers  subjected  to  the  ordeal,  253 
Accuser  obliged  to  inscribe  him- 
self, 290 
even  in  the  case  of  slaves,      296 
subjected  to  lex  talionis,         290 
torture  of  the  accused  by  the,  311 
Admiralty  courts,  duel  not  allow- 
ed in,  111 
Adrian  moderates  use  of  torture,  297 
Adultery,  torture  justified  by,       290 
Advowson,                                         133 
Africa,  numerous  ordeals  in,          182 
Agobard,  St.,  opposes  the  duel,    133 
and  the  ordeal,                          267 
Alfonso  the  Wise  of  Castile,           312 
restricts  the  duel,                      150 
the  use  of  torture,            315 
does  not  recognize  ordeals,      276 
Amasis  of  Egypt,                             179 
Amiens,  nobles  of,  demand  the 

duel  as  a  right,  161 

Amsterdam,  case  of  torture  in,     366 
Andrew,  St.,  lance  of,  211 

Anglican  Church  adopts  compur- 
gation, 66 
Anglo-Saxons,  battle-ordeal  un- 
known to  the,  83 
torture  not  used  by,                 376 
Anselm  and  the  Church  of  Laon, 

141,  222,  323 
Antoninus  Pius  extends  the  tor- 
ture of  slaves,  292 
forbids  torture  after  convic- 
tion,                                       296 
Appeal  to  God  in  private  quarrels,  249 
Appeal  of  murder,  171 
defended  in  Parliament  in 
1774,  172 


Appeals  always  decided  by  duel,     91 
how  conducted  in  Germany,     94 
from  orders  to  torture,    316,  350 
evaded,  363 

Appellant  vanquished,   punish- 
ment of,  113 
lex  talionis  applied  to,             114 
Appellant,  choice  of  weapons  con- 
ceded to,                                        117 
Appellate  power  granted  to  Parle- 

ment  of  Paris,  162 

Arnustus  and  Abbey  of  Fleury,  235 
Ashford  v.  Thornton,  in  1818,  173 
Assises  de  Jerusalem,  57,  207 

torture  in,  327 

Atrocity  of  torture  system,  369 

Atto  of  Vercelli  opposes  the  duel,  135 
Audefroi-le-Batard,  ballad  by,  51 
Augustus  introduces  torture  of 

freemen,  285 

his  opinion  as  to  the  torture 
of  slaves,  291 

Austria,  Dukes  of,  permitted  to 

employ  champions,  101 

torture  abolished  in,  387 

Avitusof  Vienne  opposes  theduel,  133 

Ayeen  Akbery,  179 

Bacon,  Lord,  recommends  tor- 
ture, 379 
Baden,  torture  abolished,  1831,     387 
Bahr-recht,  247 
Bail  required  of  parties  to  duel,     116 
responsibility  of,  166 
Balance,  ordeal  of,                           224 
used  as  late  as  1728,                 225 
form  employed  in  India,  225 
Barbarians,   ordeals   indigenous 

among,  188 

contrast  between  them  and 

Rome,  300 

nature  of  their  institutions,    301 
torture  for  freemen  unknown 

to  their  laws,  302 


394 


INDEX. 


Barbarians,  torture — 

Battle,  ordeal  — 

of  slaves, 

302 

champions,  employment  of, 

119 

interests  of  the  owner  pro- 

derived from  witnesses, 

120 

tected, 

303 

penalties  on  defeated, 

122 

no  torture  of  witnesses, 

304 

professional, 

123 

disregard  of  the  law  by  the 

their  degradation, 

125 

Merovingians, 

305 

restrictions  on  use 

Battle  ordeal,  distinguished  from 

of, 

126 

duel, 

75 

of  communes, 

131 

origin  attributed  to  Cain  and 

of  churches, 

132 

Abel, 

79 

opposition  of  the  church, 

133 

in  Spain  at  Roman  conquest 

79 

encouraged    by   the    Saxon 

not  used   by  ancient  Gauls 

Othos. 

135 

and  Germans, 

79 

employed  in  diplomacy, 

136 

among   ancient   Danes    and 

forced  upon  the  church, 

137 

Irish, 

80 

universal  in  10th  and   11th 

the  Burgundians, 

81 

centuries, 

138 

the  Franks, 

81 

noteworthy  cases  of  its  em- 

the Lombards, 

82 

ployment, 

139 

unknown  among   Anglo- 

explanations  of  its  injustice, 

141 

Saxons, 

83 

abrogated  in  Iceland, 

142 

introduced  by  William  the 

in  Denmark, 

143 

Conqueror, 

83 

influence  of  the  Tiers-Etat, 

143 

unknown  to  the  Wisigothic 

of  commerce, 

145 

laws, 

84 

of  the  church, 

147 

used  by  the  Pannonian  Goths 

,  85 

of  the  Roman  law, 

148 

and  Sclavonic  tribes, 

85 

efforts  to  restrict  it  in   the 

employed   as  a  remedy  for 

13th  century, 

149 

perjury, 

86 

abolished  in  Majorca  in  1248, 

150 

originally  confined  to  doubt- 

restricted   by    Alfonso    the 

ful  cases, 

87 

Wise, 

150 

its  use  extended  by  challen- 

by St.  Louis, 

152 

ging  witnesses, 

88 

opposition  of  feudalism, 

154 

and  judges, 

90 

legislation  of  Philippe-le-Bel 

157 

appeals  always  conducted  in 

efforts  of  the  Parlement, 

159 

this  manner, 

92 

reaction  under  Louis  X., 

161 

slender  restrictions  on, 

95 

persistent  popular  faith, 

162 

minimum   value   for    which 

gradual  decline  in  the  14th 

allowed, 

99 

and  15th  centuries, 

163 

lofty  rank  no  exemption, 

100 

revived  by  English  occupa- 

used in  international  ques- 

tion, 

164 

tions, 

101 

becomes     obsolete    in    16th 

humblest   classes    subjected 

century, 

167 

to  it, 

102 

restricted  in  Hungary  in 

between  parties  of  different 

1492, 

168 

conditions, 

103 

Julius   II.    prohibits   it   in 

women  and  men, 

105 

1505, 

169 

ecclesiastics, 

106 

prevails  in  Russia  until  1649, 

169 

and  laymen. 

107 

in  Scotland  in  16th  century, 

170 

in  ecclesiastical  courts, 

109 

in  England  in  16th  and  17th 

in  admiralty  courts, 

111 

centuries, 

171 

forms  and  ceremonies  of, 

112 

abrogated  in  1819, 

174 

oath  preliminary  to, 

112 

Bavaria,  torture  abolished,  1807, 

387 

consequences  of  defeat, 

113 

Beam,    compurgation    in     18th 

lex  talionis, 

114 

century, 

61 

bail  required  of  contestants, 

116 

restrictions  on  the  duel  in, 

98 

punishment  for  default, 

116 

duel  in  code  of  1552, 

165 

choice  of  weapons, 

117 

torture  not  used  in  1288, 

333 

INK  I  X. 


395 


Beaumanoir,  Coutumes  du  Beau- 

voisis,  57 

opinion  of  the  duel,  156 

no  allusions  to  ordeal  in,         275 

no  allusions  to  torture  in,       334 

Beccaria  argues  against  torture,    389 

Belgium,  case  of  water-ordeal  in 

1815,  229 

Bera  nnd  Sanila,  duel  of,  85 

Bernard  (St.)  approves  the  ordeal, 

268 
Bernhardi,  Mart.,  argues  against 

torture,  385 

Bignon,  Jerome,  his   testimony 

as  to  water-ordeal,  227 

Bitter  water,  ordeal  of,  180 

Blois,  ordonnance  of  in  1498,        349 

Blood,  ordeal  of,  245 

examples  of  its  use,  245 

employed  in  the  17th  century, 

246-7 

not  used  in  primitive  times,    247 

belief  in,  still  existing,  247 

in  1825,  in  New  York,  259 

Bobenzan,  Dr.,  case  of,  357 

Boden,   Heinrich  von,   tract  on 

torture,  355 

deplores  abuses  of  torture,     385 

Boot,  the,  a  Scottish  torture,        383 

Bordeaux,  torture  little  used,        343 

Bothwell  claims  the  duel  in  1567,  170 

Bread,  ordeal  of,  232 

formulas  of,  233 

chiefly  used  by  Anglo-Saxons, 

235 
employed  in  the  1 7th  century,  235 
form  used  in  India,  236 

Bulgarians,  use  of  torture  in  9th 

century,  325 

Burgundy,  nobles  of,  demand  the 

duel  as  a  right,  161 

Burke,  defends  the  appeal  of  mur- 
der in  1774,  173 

Calabar  bean,  ordeal  of,  183 

Caligula,  appetite  for  human  suf- 
fering, 286 
Caracalla,  torture  of  women  for 

poisoning,  290 

Carlovingians,  torture  not  used 

for  evidence  under,  318 

torture  as  punishment,  319 

torture  unnecessary,  319 

incompatible  with  forms  of 

procedure,  320 

Caroline  Constitutions,  353 

Carrouges  and  Jacques  le  Gris, 

duel  between,  163 


Caschielawis,  a  Scottish  torture,  383 
Celestin  III.  prohibits  the  duel,  147 
Champii^iif,   nobles  of,   demand 

the  duel,  161 

protest  against  torture,  341 

charters  of  in  1315,  341 

Champion  of  England,  101 

Champions  furnished  by  suzerain,  105 

weapons  of,  117 

employment  of,  119 

selected  from  the  family,         119 

as  witnesses,  120 

hired,  121 

defeated,  punishment  of,         122 

professional,  123 

identified  with  gladiators,   124 

degradation  of,  125 

restrictions  on  use  of,  126 

generally  employed  in  civil 

cases,  128 

equality  preserved  between,   130 

for  communities,  131 

in  the  ordeal,  260 

Charlemagne's  use  of  ordeal  of 

cross,  230 

decrees  confidence  in  ordeal,  263 

character  of  his  legislation,    318 

Charles  of  Anjou,  77 

Charles  VI.  assumes  sole  power 

to  grant  the  duel,  164 

Charles  the  Good  of  Flanders,  263 
Charles  V.,  criminal  code  of,  353 
Charters     granting     ordeal     to 

churches,  271 

granted  by  Louis  Hutin  340 

Chastaigneraye  and  Jarnac,  duel 

between,  167 

Chatelet  of  Paris,  use  of  torture,  344 
Children  as  compurgators,  38 

China,  ancient  form  of  belief  in,  176 
Chou-King,  or  sacred   book   of 

China,  177 

Christians,  tortured  under  Nero,  28& 
special  edicts  of  Diocletian,    287 
Christianity,  influence  of,       295,  390 
Christiern  V.  of  Denmark,  laws  of,  375 
Church,  profits  derived  from  ad- 
ministering oaths,  23 
not  exempted  from  the  duel,    106 
champions  of,                            132 
opposition  to  the  duel,     133,  147 
relations  of  to  the  ordeal         266 
adverse  to  torture  in  ninth 

century,  319 

hostile  to  torture  until  13th 

century,  325 

influence  in  introducing  tor- 
ture, 330 


396 


INDEX. 


Cicero,  varying  opinions  of  tor- 
ture, 298 
Civil  suits,  torture  in,  362 
Class  privileges,  19 
Claudius,  fondness  for  witnessing 

torture,  286 

Clergy,  exemption  of  from  tor- 
ture, 317 
Clovis  and  the  vase  of  Soissons,    301 
Coke,  Sir  Edward,   administers 

torture,  379 

Colbert,  revision  of  criminal  law 

by,  352 

Cold-water  ordeal  (see  Water). 
Coloman,  St.,  tortured  to  death,  322 
Commerce,  influence  of,   on  the 

duel,  158 

on  ordeal,  247 

Communes,  champions  of,  131 

influence  of,  on  the  duel,         143 

on  ordeals,  277 

averse  to  torture,  342 

Compurgators  (see  Co?ijurators). 

Compurgation,  24 

universal  use  of,  24 

antiquity  of,  25 

adopted  by  the  church  26 

specially  used  by  ecclesiastics, 

29 
modes  of  administering  oath,  38 
legal  value  of,  39 

as  a  substitute  for  deficient 

testimony,  40 

little  confidence  inspired  by 

it,  45 

safeguards  of  the  system,  49 

perjury  occasioned  by  it,  50 

in  England,  53 

in  the  thirteenth  century,         57 
undermined  by  the  Roman 

law,  57 

in  Normandy  till  1583,  60 

|      in  Beam  till  18th  century,        16 
in  Spain  in  14th  century,  61 

in  Germany  in  1548,  62 

in  Scotland  in  14th  century,     62 
in  Denmark  in  1683,  63 

in  Sweden  in  1653  63 

in  Poland  in  18th  century,        63 
in  England  until  19th  cen- 
tury, 64,  65 
preserved  by  the  church,  65 
adopted  by  Anglican  church,  66 
Compounding  for  the  ordeal,           262 
Confession  under  torture  retracted, 

367 

estimate  of,  368 

Confidence  reposed  in  the  ordeal..  261 


Confidence  in  evidence    by  tor- 
ture, 297,  367 
Confucius,  177 
Conjurators,  24 
generally  kinsmen,                    30 
number  required,  31 
modes  of  selecting,  35 
comparison  with  witnesses,       46 
held  guilty  of  perjury,               47 
penalties  inflicted  on,  48 
accusatorial  67 
in  Swabia  70 
in  the  Fehmgericht,           70 
in  Britanny,  70 
Conrad  of  Marburg,  Grand  In- 
quisitor,                         58,  270,  272 
Constantine,  torture  of  freemen 

authorized  by,  290 

Constitutiones  Sicularum, 

57,  149,  274,  329 
Conversion  of  Danes  by  ordeal  of 

hot  iron,  206 

Convicts  not    tortured    for   evi- 
dence under  Roman  law,    296 
tortured  under  modern  laws, 

351,  361,  369 
Corsica,  torture  in  14th  century,  344 
Corsnaed,  322 

Coucy,  Enguerrand  de,  156 

Coucy,  Jacques  de,  case  of  351 

Council  of  Valence  denounces 

the  duel,  134 

of  Lateran,  duel  prohibited 

by,  147 

ceremonies  of  ordeal  in- 
terdicted by,  272 
Courts  liable  to  challenge  by  de- 
feated pleaders,  90 
admiralty,                         111,  278 
Cous  (les)  lou  roi,                             110 
Crimen  majestatis,  freemen  lia- 
ble to  torture  for,                 285 
extended  application  of,          286 
slaves  tortured  against  mas- 
ters in,                                     294 
in  modern  times,  314,  317,  340, 
344,  356,  379,  386 
Cripples  forced  to  furnish  cham- 
pions,                                            105 
Cross,  ordeal  of,                                230 
earliest  instance  in  752,          230 
favored  by  Charlemagne,        230 
substitutes  allowed  in,             231 
variations  of,                             231 
forbidden  by  Louis-le-Dcbon- 

naire,  231 

again  favored  by  him,  232 

soon  disappears,  232 


i  \  D  i;  x 


397 


Colin,  svnoii  of,  sondemni  water 

ordeal  in   17  1."',  228 

DAM  \hks  for  tortured  slave?,         284 
Danes    converted    by   ordenl    of 

lint-iron,  20C 

Dant/.ie,  case  of  water  ordeal  in 

1836,  229 

Deaf  and  dumb  liable  to  torture,  360 
Deceit  authorized  to  obtain  con- 
fessions, 373 
Deeurions  not  liable  to  torture,  289 
Defaulters  in  duel  punished,  116 
Defeat  in  duel  a   conviction  of 

perjury,  112 

Defendant,  vanquished,  punish- 
ment of,  113 
choice  of  weapons  conceded 
to,                                          118 
Defence,  hopelessness   of  under 

torture  system,  360 

Degradation  of  professional 

champions,  125 

Del  Rio,  his  instructions   as  to 

torture,  363,  373 

Denmark,  compurgation  in  1683,  63 
antiquity  of  battle  ordeal  in,  80 
duel  abrogated  in,  143 

ordeal  abolished  in  13th  cen- 
tury, 274 
torture   not   legalized   until 
1683,                                       375 
Desrene,  60 
Diocletian,     his    persecution    of 

Christians,  288 

forbids  the  torture  of  soldiers 

and  others,  289 

restricts  use  of  torture,  297 

Divining  rod,  279 

Divination  by  lot  forbidden  by 

the  church,  243 

Doctors  exempt  from  torture,         314  ; 
Dog  of  Montargis,  162  | 

Domitian,  torture  of  patrician  by,  290 
Doubtful  results  of  ordeal,  265 

Duel,  judicial  (see  Battte  Ordeal). 
Duels,  prevalence  of  under  Henry 

IV.,  78 

Dunning,  defends  the  appeal  of 
murder  in  1774,  173 

Eccelino  di  Romano,  329 
Ecclesiastical  courts,  use  of  com- 
purgation by,  66 
jurisdiction  over  duels,  109 
opposition  to  the  ordeal,  207 
Ecclesiastics   and  women   uot  al- 
lowed to  testify,  89 

34 


til  sties — 
obliged  to  undergo  the  duel,   100 
struggle     to     maintain     the 

duel,  110 

and  the  ordeal,  271 

claim  exemption  from  ordeal,  269 
not  liable  to  torture,  317 

their  presence  at  torture  pro- 
hibited, 320 
Edictum  Theoderici,  84 
Egypt,  traces  of  ordeal  in,  I  7'.> 
Egyptians,  torture  not  used  by,  282 
Klfstan  of  Winchester,  case  of,  200 
Emerich  von  Rosbach,  Processus 

Criminalis,  355 

England,  compurgation  used  un- 
til 19th  century,  64,  65 
battle  ordeal  introduced  at 

the  Conquest,  83 

restrictions  on  the  duel  in,  97 
duel  in  civil  suits  until  1571,  171 
duel  in  criminal  cases  until 

1819,  17:5 

ordeal  abolished  in  1219,  273 
torture  under  King  Stephen,  324 
history  of  torture  in,  376 

not  recognized  by  common 

law,  377 

used  under  royal  prerogative,  378 

abandoned  after  1640,  381 

except  in  cases  of  witchcraft,  38 1 

Peine  forte  et  dure,  384 

Epicharis,  fortitude  of,  288 

Equality  of  weapons  in  the  duel,   118 

Erfurt,  torture  of  inhabitants  of,  324 

Estimate  of  extorted  confession,    368 

Estrapade,  torture  of,  316,  351 

Etablissements  of  St  Louis,  153 

no  allusions  to  ordeal,  275 

no  allusions  to  torture,  333 

Eucharist,  miraculous  powers  of 

the,  241 

ordeal  of,  236 

formulas  of,  237 

used  in  7th  eentury,  237 
cases  of  its  employment,  238 
forbidden  by  Robert  the 

Pious,  239 

and  by  Gregory  VII.,      239 
other  cases  of  its  use,       241 
Eugenius  II.  introduces  the  cold 

water  ordeal,  218 

European  ordeals  identical  with 

Indian,  178 

Evidence,  varieties  of,  17 

of  relatives,  30 

by  torture,  value  of,  297 

Exemption  of  nobles  from  torture,  314 


398 


INDEX. 


Experimentum  crucis, 


232 


False   decretals   disapprove   of 

torture,  326 

Family,  responsibility  of  the,  15 

champions  furnished  by,  119 

Fees  to  priests  for  the  ordeal,         271 

Fehmgericht,  accusatorial  oaths 

in  the,  70 

Feini,  antiquity  of  battle  ordeal 

among,  80 

the  ordeal  indigenous  among,  190 
Fendilles  and  des  Guerres,  duel 

between,  167 

Feudal   efforts  to   maintain  the 

duel,  154 

to  resist  torture,  339 

Feudalism  weakened  by  the  Ro- 
man law,  148 
not  favorable  to  torture,          321 
justice  still  rendered  in  pub- 
lic,                                          321 
occasional  allusions  to  tor- 
ture,                                       322 
torture  used  to  extort  money,  324 
opposition  to  torture  in  1315,  339 
Fian,  Dr.,  case  of,                            383 
Fire,  ordeal  of,                                 208 
at  first  used  for  slaves  and 

strangers,  208 

case  of  Petrus  Igneus,  209 

Grossolano  of  Milan,  210 
the  lance  of  St.  An- 
drew, 211 
St.  Francis  of  Assisi,  212 
Savonarola,  213 
generally    an    ecclesiastical 

ordeal,  215 

relics  tested  by,  216 

Fontaines,  Pierre  de,  58 

opinion  of  the  duel,  156 

no  allusions  to  ordeal  in,        275 

no  allusions  to  torture  in,       334 

Fore-oath  of  Anglo-Saxons,  68 

For  de  Beam,  compurgation  in, 

38,  43,  61 

duel  in,  165 

no  allusions  to  torture  in,       333 

Formula  of  eompurgatorial  oath,     43 

Fountains,  miraculous,  185 

France,  restrictions  on  the  duel 

in,  %      95 

struggle  to  abolish  the  duel 

in,  152 

duel    never    formally   abol- 
ished, 168 
cold   water   ordeal   in    17th 
century,                                   227 


France — 

ordeal  obsolete  in  13th  cen- 
tury, -  275 
torture  appears  in  1254,  332 
scarcely  used,  333 
condition  of  roturiers,  335 
cases  reported  in  the  Olim,  336 
opposition  of  feudalism,  339 
charters  granted   by   Louis 

Hutin,  340 

torture  permanently  estab- 
lished, 342 
exceptions   among   com- 
munes, 342 
torture  universal  by  end  of 

14th  century,  344 

procedure  adopted  in  1498,     349 
perfected  in  1539,  350 

question    preparatoire    and 

prealable,  350 

question  ordinaire  and  ex- 
traordinaire, 351 
ordonnance  of  1670,                  352 
torture  abolished  1780-89,      388 
Francis  I.,  77 
duel  ordered  by,                       166 
perfects  the   system  of  tor- 
ture,                                       350 
Francis  of  Assisi,  St.,  case  of,        212 
Fredegonda,                                 31,  305 
Frederic  I.  uses  torture  as  pun- 
ishment,                                        323 
Frederic  II.,                                         57 
restricts  the  duel,                    149 
abolishes  ordeal  in  1231,         274 
introduces  torture,                    329 
Frederick  the  Great  limits  use  of 

torture,  386 

Freedmen  not  tortured  against 

their  patrons,  293 

doubt  as  to  their  liability  to 

torture,  293 

not  tortured  by  Ostrogoths,    307 
Freemen  of  Rome  not  liable  to 

torture,  285 

torture  of,  legalized,  288 

Frisia,  ordeals  used  in  the  13th 

century,  274 

Frisians,  ordeal  of  lot  among  the,  243 
Fuero  Juzgo,  312 

Gauls,   torture  among  the   an- 
cient, 303 
Gentoo  code,  179 
Germans,  ancient,  15 
Germany,  compurgation  in  1548,     62 
restrictions  on  the  duel  in,        96 
ordeal  in  14th  century,             275 


INDEX 


:;:)'.» 


(.'.•nn  any — 

tyranny  of  the  DOblM, 
torture  sot  in  early  eodti 
torture  of  slaves  in  ISM, 
torture  in, 
Constitutions  of  Charles  V.,  353 
torture  system  from  16th  to 

18th  century,  355 

gradual  abolition  of  torture,  386 

Gladiators  tortured  as  witnesses,    291 

(«<>d\vin,  Duke  of  Kent,  case  of, 

Golden  Bull  of  1356, 

Gothic  ritual  maintained  by  duel 

and  ordeal,  138, 

Qothf,  l'iinnonian,  battle  ordeal 

used  by  the,  85, 

civilization  of  the,  84, 

Graefe,  Johann,  argues  against 

torture, 
Grandier,  Urbain,  case  or, 
Gratian  disapproves  of  torture, 
Greek  Empire, Lower,ordeal  used 

in, 
Greece,  ordeal  anciently  used  in, 
torture  prevalent  in, 
confined  by  law  to  slaves, 
exceptions  to  this, 
slave  testimony  the  best  evi- 
dence, 
damages   of  tortured    slave 

paid  for, 
modes  of  torture  in  vogue, 
Gregory  of  Tours,  case  of,       21, 
Gregory  I.   disapproves   of  tor- 
ture, 
Grimoald    restricts     the    battle 

ordeal, 
Grossolano  of  Milan,  case  of, 
Guebres,  the, 

Guelf  II.  of  Altorf,  case  of, 
Gundeberga,  case  of  Queen, 


827 

:;n 
353 


233 
344 

215 

190 
306 

384 
371 
326 

207 
184 
282 
283 
283 

283 

284 
284 
305 

325 

82 
210 
181 
220 

82 


Haxover,  torture  abolished, 

1822,  387 

Hebrews,  ordeals  of  the,  180 

Henry  II.    (St.)    challenged   by 
Hermann  of  Swabia,  100 

Henry  the  Lion,  140 

Henry  II.  of  Navarre  orders  the 
duel  in  1518,  166 

Henry  II.  of  France,  last  duel 
granted  by,  167 

Henry  of  Limburg  and  the  Arch- 
bishop of  Treves,  236 

Henry  IV.  (Emp  )  and  ordeal  of 
Eucharist,  239 

Henry  III.  abolishes   ordeal   in 
Enghind,  273 


Heresy,  torture  in  trials  of,    317,  880 
Hildebert  of  Io  Mans  disapproves 

of  torture,  l','22 

llillchrand  condemned   by  cold 

water  ordeal,  221 

his  use  of  ordeal  of  Eucha- 
rist, 239 
Hincmar   of  Rheims,   his   argu- 
ments for  ordeal,  199 
explanation    of    hot    water 

ordeal,  196,  199 

of  cold  water  ordeal,       217 

Holland,  torture  abandoned  in,     385 

Hungary,  duel  restricted  in  1492,   168 

use  of  torture  in,  345 

Iceland,  duel  abrogated  in,  142 
ordeal  abolished  in  13th  cen- 
tury, 274 
torture  in,  374 
used  on  pregnant  women, 374 
abolished  in  1258,  375 
Ictus  capituli,  110 
regis,  110 
Imagination,  effects  of  ordeal  on,  259 
Independence  of  the   Teuton 

tribes,  301 
India,  antiquity  of  ordeal  in,  178 
ordeals  identical  with  Euro- 
pean, 178 
modern  use  of  ordeal,  179 
hot  water  ordeal,  201 
red-hot  iron  ordeal,  202 
cold  water  ordeal,  217 
trial  by  balance,  225 
ordeal  of  rice,  236 
of  the  lot,  245 
poison  ordeal,  250 
Influence  derived  from  ordeal,  271 
of  Roman   laws  in  modern 
times,  300 
Innocent  III.  alters  the  compur- 

gatorial  oath,  54 
forbids  ecclesiastical  duels,  107 
prohibits  the  duel,  147 
the  ordeal,  272 
Innocent  IV.,  statutes  of  inqui- 
sition, 330 
Inquisition,  use  of  compurgation 

by,  58,  65 
influence  of,  on  torture,  330 
system  of  investigation,  331 
influence  on  judicial  pro- 
ceedings, 348,  370 
system  in  the  17th  century,  372 
Inquisitorial  process  introduced,  348 
perfected  by  Francis  I.,  350 
hopelessness  of  defence,  360 


400 


INDEX. 


Insane  not  to  be  tortured,  359 
Inscription  of  accuser,  290,  297 
Internationa]  questions  referred 

to  the  duel,  101 
Ireland,    antiquity   of   battle 

ordeal  in,  SO 
Irish,   the   ordeal   indigenous 

among  the,  190 

Iron,  red-hot,  ordeal  of,  201 

mode  of  administering,  201 

in  India,  202 

sometimes    an     aristocratic 

ordeal,  203 
cases  of  its  employment,  204 
used  to  prove  legitimacy,  205 
extent  of  its  use,  207 
bands  as  punishment  and  or- 
deal, 248 
Irregular  ordeals,  248 
Italy,  the  duel  prohibited  in  1505,  169 
torture  first  revived  in,  328 
recent  use  of  torture  in,  389 
Ivo  of  Chartres,  268 
declines  to  adjudge  the  duel,  1 09 

James  I.  approves  the  ordeal  of 

blood,  246 

eulogizes  water  ordeal,  228 

administers  torture,  383 

Japanese  ordeals,  180 

Jarnac  and  La  Chastaigneraye,  78 
Java,  ordeals  in,  181 

Jayme  I.   of  Aragon,   abolishes 

ordeals,  276 

Jeanne  of  France,  case  of,  160 

Jeffniteed,  69 

Jews  liable  to  the  duel,  103 

Jovem  lapidem  jurare,  187 

Judges  liable  to  challenge  by  de- 
feated pleaders,  90 
royal,  not  liable  to  challenge,  93 
liability  of,   for  undue   tor- 
ture,              310,  315,  355,  364 
torture  dependent  on  their 

discretion,  358,  361 

influence  of  torture  system 
on,  365 

Judicial  duel.     (See  Battle  Or  deal.) 
Juise,  201,  207 

Julius  II.  prohibits  the  duel  in 

1505,  169 

Juramentum  supermortuum,  41 

Jury-trial,  probable  origin  of,  36 

among  Scandinavian  nations,  375 

Justice,  publicity  of,  under  Car- 

lovingians,  320 

Justinian  authorizes  torture  for 
adultery,  290 


Kindred,  responsibility  of,  15 

Kinsmen,  evidence  of,  30 

Koran,  absence  of  ordeal  in,  182 

La  Chastaigneraye,  78 

Lamoignon  endeavors  to  amelio- 
rate the  law,  352 
Lance  of  St.  Andrew,  case  of,       211 
Languedoc.  charter  of,  in  1315,     340 
Lang  (J.  P.),  in  1661,  hesitates 

to  condemn  water  ordeal,  228 

Laon,  robb'ery  of  church  of, 

141,  222,  323 
Lateran,  council  of,  prohibits  the 

duel,  141 

prohibits  ordeal,  272 

Latins,  traces  of  ordeals  among,  186 
Legislative  functions  of  duel,  135,  140 
Leo  III.,  trial  of,  by  Charlemagne,  27 
Lose  Majeste  (see  Crimen  Majestatis) . 
Leudastes,  case  of,  305 

Lex  apparens,  or  paribilis,  100 

Gundebalda,  81 

Monachorum,  268 

talionis  for  defeated  appel- 
lant, 114 
accuser   subject   to,   in 

Rome,  290 

under  Wisigothic  code,    310 

Lille,  compurgatorial  oaths  in,        60 

torture  unused  in  1354,  343 

Limitations  of  torture  disregarded, 

363 

Livres  de  Jostice  et  de  Plet,  333 

Lombard  law,  82 

Lot,  ordeal  of,  among  the  Hebrews,  180 

in  the  middle  ages,  242 

used  in  the  earliest  times,       242 

form  employed  by  the  Frisians, 

243 
examples  of  its  use,  244 

form  used  in  India,  245 

Lothuir  and  Teutberga,  case  of, 

199,  238 
Lothair  II.,  tortures  the  citizens 

of  Erfurt,  324 

Louis  le  Debonnaire  prohibits  the 

cold  water  ordeal,  219 

forbids  ordeal  of  cross,  231 

resumes  its  use,  232 

Louis,  St.,  his  efforts  to  abolish 

the  duel,  152 

sanctions  use  of  torture,  332 

equity  of  his  procedures,  348 

Louis  Hutin  maintains  the  use  of 

torture,  339 

Louis  XIV.  revises  the  criminal 
code,  352 


N  i  >  I :  x 


401 


Low   vs.   Paramore,   one  of  in 

1571,  171 

Loj  Qombetto,  81 

Luitprand  rest  riots  the  battle  or- 
deal, 89 

Madagascar,  ordeal  in,  184 

Magicians  liable  to  torture  under 

Ostrogoths,  308 

torture  requisite  in  trials  of,  370 
Majestatis  (see  Crimen  Ma  jest  at  is) . 
Majorca,  duel  abolished  in,  150 

Malacca,  ordeals  in,  181 

Manassas,  Archbishop  of  Rheims,  46 
Manu,    laws    of,   importance    of 

oath  in,  20 

ordeals  indicated  in,  177 

torture  not  alluded  to,  281 

Marc  of  silver,.  99 

Marigny,  Enguerrand  de,  338 

Maritime  laws,  111,  278 

Masserano,  Marquis  of,  362 

Merovingians,  their  disregard  of 

the  law,  305 

Milanese  judge,  case  of,  366 

Moine  de  Caen,  torture  of,  351 

Monachorum  Lex,  268 

Montaigne  ridicules  torture,  384 

Montesquieu  argues  against  tor- 
ture, 387 
Mosaic  law,  ordeals  in,  180 

torture  not  alluded«to,  282 

Moslems,  traces  of  ordeals  among,  182 
Mou-Vang,instructions  to  judges,  177 
Mozarabic  ritual  maintained  by 

duel  and  ordeal,  138,  215 

Muratori,  his  belief  in  water  or- 
deal, 228 

Naples,  duel  restricted  in,  149 

ordeal  abolished  in  1231,  274 
first  appearance  of  torture,  328 
recent  use  of  torture  in,  389 

Nefninge,  or  Danish  jury,  375 

Nempdarii,  or  Swedish  jury,  376 

Nero,  cruelties  inflicted  on  Chris- 
tians, 287 
Newald    (Hermann)    deprecates 

water  ordeal.  226 

Nicholas  I.  forbids  ecclesiastical 

duels,  107 

opposes  the  duel,  134 

prohibits  torture,  325 

Nicolas,  Augustin,  writes  against 

torture,  385 

Nithstong,  116 

Nobles    of   France   demand    the 
duel  in  1315,  161 


Nobles,  Immunity  from  torture, 

814,  817,  866 

Norland,  Bishop  of  Autun,        45.  50 
Normandy, compurgation  in  16th 

century,  60 

duel  legal  until  1583,  165 

charters  of  in  1315,  340 

Norway,  ordeal  abolished  in  13th 

century,  274 

Oath,  importance   of  in  Roman 

law,  18 

of  negation  not  sufficient  in 

primitive  times,  18 

in  Germany,  19 

multiplied,  21 

classification  of,  22,  35 

adjuncts  essential  to,  22 

of  ecclesiastics,  27 

compurgatorial  formula  of,  43,  54 
altered  by  the  church,        54 
modes  of  administering,     38 
sepulchral,  41 

accusatorial,  classification  of 

in  Bordeaux,  69 

preliminary  to  the  duel,  112 

purgatorial  considered  as  or- 
deal. 195,  248 
Oflje  judicium,  232 
Olim,  the,  58 
cases  of  torture  reported  in,    336 
Opposition  of  the  church  to  the 

duel,  133 

of  papacy  to  ordeal,  267 

Ordeal  of  battle  (see  Battle  Ordeal). 
Ordeal,  China  an  exception  to  its 

prevalence,  176 

India,  its  antiquity  in,  178 

identity  in  India  and  Europe,  178 
Egypt,  traces  in,  179 

among  the  Hebrews,  180 

in  Eastern  Asia,  180 

traces  of  among  the  Moslems,  182 
in  Polynesia,  182 

numerous  in  Africa,  182 

in  Madagascar,  184 

in  ancient  Greece,  184 

traces  of  among  the  Latins,  186 
indigenous  among  the  Bar- 
barians, 188 
universal  throughout  Europe, 192 
varieties  of,  196 
of  boiling  water,  196 
of  red-hot  iron,  201 
of  fire,  208 
of  cold  water,  216 
of  the  balance,  224 
of  the  cross,  230 


34* 


402 

INDEX. 

Orde.il— 

Ordeal — 

of  bread  or  cheese, 

232 

influence  of  Roman  law, 

277 

of  the  Eucharist, 

236 

of  communes, 

277 

of  the  lot, 

242 

of  commerce, 

27S 

of  blood, 

245 

Ordonnance  of  1260, 

153 

of  purgatorial  oaths, 

248 

of  1293  and  1303, 

157 

irregular, 

248 

of  1306, 

158 

of  poison, 

250 

of  1566, 

168 

regulations  of  the  ordeal, 

250 

of  1254,                              332 

,  335 

compulsory  under   order    of 

of  1498, 

349 

court, 

250 

of  1539, 

350 

in   absence   of  direct   testi- 

of 1670, 

352 

mony, 

251 

Ostrogoths,  civilization  of, 

307 

right  of  appellant  or  defend- 

torture not  used  for  freemen 

,307 

ant  to  demand  it, 

251 

but  for  slaves, 

307 

accusers  obliged  to  undergo  it 

,253 

Otfrid  reduces  the   Tudesque  tc 

employed  in  default  of  com- 

writing, 

188 

purgation, 

253 

Otho  I.  encourages  the  duel, 

135 

regarded  as  a  punishment, 

255 

Otho  II.  extends  its  application, 

137 

employed  as  a  torture, 

257 

Otho  of  Bavaria, 

139 

supplanted  by  torture, 

258 

effects  on  the  imagination, 

259 

Palermo,  recentuseof  torture  in 

,389 

use  of  substitutes  or  cham- 

Pallor evidence  for  torture, 

358 

pions, 

260 

Panis  conjuratio, 

232 

used  especially  for  serfs, 

260 

Papacy,  opposition  to  the  duel, 

147 

confidence  felt  in  the  process 

261 

to  ordeal, 

267 

composition  allowed  in  it, 

262 

degradation  of,  in  10th  and 

explanation    of    its    uncer- 

11th centuries, 

270 

tainty, 

263 

Parlement   of   Paris  evades  the 

occasional  doubt  as  to  results 

265 

duel, 

159 

efforts    to    preserve    impar- 

appellate power  granted  to, 

162 

tiality, 

265 

forbids  water  ordeal,   1588, 

posture   of   the   church   re- 

1601, 1641, 

227 

specting  it, 

267 

decisions  legalizing  torture, 

336 

opposition  of  the  papacy, 

267 

Partidas,  las  Siete, 

56 

defended   by  the  church   at 

do  not  recognize  ordeals, 

276 

large, 

267 

regulations  of  torture  in, 

312 

exemption  sometimes 

Pascal  I.,  case  of, 

29 

claimed  by  ecclesiastics, 

268 

Paternity  proved  by  ordeal  of  hot 

motives  of  the  church  in  fa- 

iron, 

205 

vor  of  ordeal, 

271 

Pedro  I.  of  Aragon, 

77 

abuse  of  power  by  ecclesias- 

Pegu, ordeals  in, 

181 

tics, 

272 

Peine  forte  et  dure, 

384 

prohibition  by  Innocent  III. 

272 

Penalties  inflicted  on  witches, 

223 

secular  legislation  against, 

273 

Penniwinkis,  a  Scottish  torture, 

383 

abolished  in  England  in  1219, 

273 

Perigord,  charter  of,  in  1319, 

341 

restricted  in  Scotland  in  13th 

Perjury  caused  by  compurgation 

50 

century, 

274 

duel  used  as  a  remedy  for, 

86 

abolished   by   Fred.    II.   in 

Petrus  Igneus,  case  of, 

209 

1231, 

274 

Philadelphia,  ordeal  of  blood  in 

and  by  the  Northern  Nations, 

274 

1860, 

247 

obsolete   in  France  in  13th 

Philippe-le-Bel  restricts  the  duel, 

157 

century, 

275 

remonstrates  against  Inquisi- 

employed in  Germany  in  1 4th 

tion, 

331 

century, 

275 

uses    Inquisition    against 

gradual  abolition  in  Spain, 

276 

Templars, 

332 

lingers   until  16th  and  17th 

Philippe-le-Long,  charter  grant- 

centuries, 

277 

ed  by, 

311 

i  n  i)  r.  x 


103 


Philippe  do  Valois  grants  appel- 
late power  to  the  PfcrltMent, 

Philip  of  Burgundy  :il»<>li>hcs  the 

duel, 
Philotas,  torture  of, 
Physiognomy    does    not  justify 

torture, 
Piso,  conspiracy  of, 
Plough-shares,  ordeal  of  red  hot, 
Poison  ordeals  in  Africa, 
in  Madagascar, 
in  India, 
Poisoning,  torture  of  women  for, 
Poland,    compurgation    in    ]8th 
century, 
use  of  torture  in, 
Poppo   converts   the   Danes    by 

ordeal  of  hot  iron, 
Pregnant  women    exempt  from 
torture,  296,  314,  317, 

except  in  Iceland, 
Priestly  fees  for  the  ordeal, 
Priests  not  liable  to  torture  in 
Rome, 
favors  shown  to,  in  torture, 
Professional  champions, 

identified  with  Roman  gladi- 
ators, 
degradations   inflicted   on 
them, 
Prohibition  of  duel  and  ordeal 
by  Innocent  III.,        107,  147, 
Predentin*,  hymn  to  St.  Vincent, 
Prussia,  torture  limited  in  1740, 
West,  water  ordeal  used  till 
1745, 
Publicity  of  justice  under  Carlo- 

vingians, 
Punishment  of  conjurators, 
for  defeat  in  the  duel, 
for  default  in  the  duel, 
of  defeated  champions, 
ordeal  regarded  as, 
Purgatorial  oaths  used  as  ordeal, 
Purrikeh,  or  Indian  ordeal, 


161 

104 
183 

US 

2S8 
201 
183 
184 
250 
200 

03 
346 

206 

355 
374 
271 

289 
357 
123 

124 

125 

272 
299 
386 


320 
48 
112 
116 
122 
255 
248 
179 


Qoercy,  charter  of,  in  1319,  341 
Question  preparatoire,  350 
abolished,  1780,  388 
definitive  or  prealable,  350 
abolished,  1788,  388 
ordinaire  and  extraordinaire,  351 
Quintus  Curtius,  opinion  of  tor- 
ture, 299 

Ragualh,  Swedish  laws  of,  376 

Rank,  no  exemption  on  account 

of,  100 


Rank- 
difference  in,  a  limitation  on 
the  duel,  96,  103 

Reduplication  of  oaths,  21 

Regulations  of  the  ordeal,  250 

Relics  necessary  for  the  validity 

of  oaths'  22 

tested  by  ordeal  of  fire,  216 

employed  in  ordeal,  248 

Repetition  of  torture,  367 

Responsibility  of  conjurators,  48 

of  bail  of  duellists,  166 

Restrictions  on  the  use  of  cham- 
pions, 126 
Retraction  of  extorted  confession,  367 
Rhodian  laws,   freemen   subject 

to  torture  by,  283 

Richard    Coeur   de    Lion   and 

Henry  II.,  245 

Richard  III.  and  Henry  VI.,        245 
Rickius    (Jacob)   defends   tho 

water  ordeal  in  1596,  226 

his  torture  of  witches,  372 

Riculfus,  torture  of,  306 

Riga,  treaty  with  Smolensko,         278 

Robert  the  Pious  forbids  ordeal 

of  Eucharist,  239 

Rodolph  of  Hapsburg  restricts 

the  duel,  146,149 

Rome,  traces  of  ordeal  in,  186 

use  of  torture  in,  284 

freemen  not  liable  under  the 

Republic,  285 

torture    of    freemen    intro- 
duced by  the  Emperors,      285 
cruelties  of  the  early  Caesars,  285 
persecution  of  Christians,       287 
torture  of  freemen  legalized 

under  limitations,  288 

frequent  legislation  requisite 

to  protect  them,  289 

extension  of  crimes  for  which 

they  were  tortured,  290 

accuser  subject  to  lex  talionis,  290 
witnesses  sometimes    liable 

to  torture,  291 

slaves,  torture  requisite  to 

their  testimony,  291 

not   tortured   against 

their  masters,  292 

freedmen,  doubt  as  to  their 

liability,  293 

liability  of  slaves  in  majes- 

tatis,  294 

influence  of  Christianity,        295 
slaves    crippled    in    torture 

paid  for,  296 

general  limitations  of  torture,  896 


404 


INDEX 


Rome — 

value  of  evidence  by  torture,  297 

conflicting  opinions  of,     298 

modes  of  torture  employed,    299 

influence  on  modern  laws,       300 

Roman  States,  the  duel  prohibited 

in  1505,  169 

Roman  law,  revival  of  study  of,       55 
influence    of,    in    abolishing 

negative  proofs,  56 

on  the  Goths,  84,  306 

on  the  duel,  148 

on  ordeal,  277 

on  torture,  327 

Rotharis  restricts  the  battle  ordeal,  82 

Russia,  duel  allowed  until  1649,     169 

ordeal  for  theft  in,  229 

use  of  torture  in,  346 

torture  abolished  in,  3S7 

St.  Dizier,    torture   unused    in 

1354,  342 

Sandemend,  or  Danish  jury,  375 

Sassy-bark,  ordeal  of,  183 

Sathee,  236 

Savonarola,  case  of,  213 

Saxons    and    Luitzes,    duel   be- 
tween, 102 
Saxony,    torture    abolished    in 

1770-83,    .  387 

Scavenger's  daughter,  380 

Scheingehen,  or  ordeal  of  blood,   247 
Sclavonic   tribes,    battle    ordeal 

universal,  85 

Scotland,  compurgation  in  14th 

century,  62 

duel  allowed  in  16th  century,  170 
ordeal  of  blood  used  in  17th 

century,  246 

ordeals    restricted    in    13th 

century,  274 

torture  of  late  introduction 

in,  382 

terrible  character  of  Scottish 

torture,  3S3 

abolished  in  1709  by  United 
Parliament,  383 

Scribonius,   in    1583,    advocates 

water  ordeal,  226 

Secrecy  of  the  inquisitorial  pro- 
cess, 348 
Seguidors,  38 
Sejanus,  plot  of,  285 
Semperfri,  104 
Senchus  Mor,  or  Brehon  law,  80,  190 
Serfs,  ordeal  reserved  for,  260 
Sexhendeman,  35 
Shower-bath,  torture  of,                  347 


Sicily,  recent  use  of  torture  in,     389 

Siete  Partidas,  312 

their  authority,  316 

duel  restricted  in,  150 

regulations  of  torture,  313 

Skevington's  daughter,  380 

Slaves  admitted  as  conjurators,       38 

allowed    the    duel    against 

their  masters,  102 

ordeal  reserved  for,  260 

torture  requisite  to  their  tes- 
timony in  Greece,  282 
and  in  Rome,            285,  291 
not   tortured    against  their 

masters  in  general,      292,  294 
torture  restricted  by  Tacitus,  295 
crippled  in  torture  paid  for,   296 
torture  of,  among  the   Bar- 
barians, 302 
interests  of  the  master  pro- 
tected, 303 
not  tortured  as»witnesses,       304 
torture  of,   under  the  Ostro- 
goths, 307 
under  Wisigoths,  309 
liable  to  torture  in  Spain, 

314,318 
torture  of,  in   Germany   in 

1356,  344 

in  Iceland  subject  to  torture,  375 
Sleeplessness, torture  of,  366,  381,  383 
Smith,  Sir  Thomas,  administers 

torture,  379 

Smolensko,  treaty  with  Riga,         278 
Solidarity  of  the  family  among 

Teutonic  races,  16,  17 

Solidus,  or  sou,  99 

Sorcerers,    tortured    by    Ostro- 
goths, 308 
insensible  to  torture,               370 
Sorcery,     torture     requisite     in 

trials  of,  370* 

Spain,  duel  restricted  in,  150 

gradual  abolition  of  ordeal,    276 
torture  under  Wisigoths,         309 
in  the  Fuero  Juzgo,  312 

in  the  Siete  Partidas,  312 
spontaneous  confession  re- 
quisite, 313 
repetition  of  torture,  313 
exemptions,  313 
liability  of  slaves,  314 
liability  of  witnesses,  315,316 
general  restrictions,  315 
responsibility  of  judges,  315 
appeals,  316 
varieties  of  torture  in  use,  316 
in  the  17th  century,  317 


i  \  1 1 1 : 1 

Staff,  ordttl  <»f, 

259 

Tor 

Statute  of  Gloucester.   1 

171 

Staundford,     Sir    Willi.nn,    ap- 

proves of  ordeals  in  1551, 

277 

Stocknefln, 

37 

Strappado,                                 316 

:;:.l 

Substitutes  in  the  ordenl, 

200 

allowed  in  ordeal  of  cross, 

231 

inn  of  estates  decided  by 

the  duel, 

135 

Superstition,  perpetuation  of, 

279 

Swantopluck  of  Bohemia, 

324 

Sweden,  compurgation  in  1653, 

03 

ordeal  abolished  in  13th  cen- 

tury, 

274 

torture  not  used  in, 

376 

Switzerland,  torture  abolished  in 

387 

Tacitus,  restricts  the  torture  of 

slaves, 

295 

Tahiti,  traces  of  ordeal  in, 

182 

Tangena  nut,  ordeal  of, 

184 

Templars,  ordeal  in  trial  of, 

208 

torture  of, 

332 

Testimony  of  tortured  slaves  the 

best  evidence  in  Greece, 

283 

Testimony  of  gladiators,  torture 

necessary  to, 

291 

and  of  slaves,           283,  285, 

291 

Teutberga,  case  of, 

199 

Teutonic  knights  introduce  or- 

deal in  Livonia, 

275 

Teutonic  independence, 

301 

Theodoric,  his  reverence  for  the 

Roman  Law, 

84 

deprecates  the  battle  ordeal, 

85 

Edict  of, 

307 

torture  of  sorcerers  by, 

308 

Theodosius    the    Great    forbids 

torture  of  priests, 

289 

Thibet,  ordeals  in, 

181 

Thomas  of  Woodstock,  Duke  .of 

Gloucester, 

171 

Tiberius,  cruelties  practised  by, 

285 

extends  the  application   of 

majestatis, 

286 

device  to  obtain  evidence  of 

slaves, 

293 

Tiers-Etat,  influence  of  on  the 

duel, 

143 

on  the  ordeal, 

277 

Torture,  ordeal  regarded  as  a, 

257 

ordeal  supplanted  by, 

258 

not  used  by  Hindus,  Jews, 

and  Egyptians, 

281 

largely  employed  in  Greece, 

282 

regulations    of    torture    in 

Rome, 

284  1 

105 


contrast  between  Romo  and 

the  Barbarians,  300 

among    Barbarians,  not   le- 
gally used  for  freemen,    302 
but  for  slaves,  303 

disregard  of  the  law,  305 

among  the  Ostrogoths,  SOT 

among  the  Wisigoths,  809 

in  the  Fuero  Juzgo,  312 

in  the  Siete  Partidas,  312 

in  Spain  in  Nth  century,        317 
not  used  under  the  Carlovin- 

gians,  318 

nor  under  the  Feudal  Sys- 
tem, 321 
occasional  allusions  to,  322 
disapproved   by  the  church 

till  13th  century,  325 

old  forms  of  evidence   be- 
come disused,  326 
not  alluded  to  in  early  Ger- 
man codes,                            326 
first  appearance   in  Assises 

de  Jerusalem,  326 

revived  by  Frederic  II.  in 

Naples,  329 

influence  of  Inquisition,  330 

appears  in  France  in  1254,     332 
not  alluded  to  in  codes  or 

text-books,  333 

six  cases   reported    in   the 

Olim,  336 

resistance  of  Feudalism,  339 

established  by  Louis  Hutin,  340 
exceptions  among  chartered 

towns,  342 

universal   by   end   of    14th 

century,  344 

in  Germany  in  1356,  344 

in  Corsica  in  14th  century,    344 
in  Venice,  345 

in  Hungary,  345 

in  Poland,  346 

in  Russia,  346 

secret  inquisitorial  proceed- 
ings introduced,  348 
French  system  of  1498,           349 
perfected  by  Francis   I.  in 

1539,  350 

revised   by  Louis   XIV.  in  . 

1670,  352 

in  Germany,  353 

Caroline  Constitutions,  353 

influence  of  Roman  law,  355 

excepted  classes,  356 

torture  left  to  discretion  of 
tribunal,  357 


400 


1  N  I)  E  X  . 


Torture — 

extension  of  the  system,  359 

privileges  allowed  to  defence,  360 
reduced  to  nullity  in  prac- 
tice, 361 
worthlessness  of  restrictions,  363 
influence  on  the  judges,  365 
real    estimate    of    extorted 

confessions,  367 

atrocity  of  the  system,  369 

influence  of  witchcraft,  370 

in  Iceland,  374 

in  Denmark,  375 

in  Sweden,  376 

in  England,  376 

in  Scotland,  382 

opposition  to,  384 

gradual   abolition    in    Ger- 
many, 1740-1831,  3S6 
abolished  in  Russia,  1801,      387 
in  France,  1789,                388 
in  Tuscany,  1786,             389 
used  in  Naples  until  recently,  389 
Toulouse,  magistrates  of,  exempt 

from  torture,  340 

Transylvania,  water  ordeal  used 

in  18th  century,  228 

Treason,  freemen  liable  to  tor- 
ture for,  in  Rome,         285,  289 
slaves  tortured  against  mas- 
ters for,  294 
in  modern  times,  314,  317,  340, 
344,  356,  379,  386 
Treves,    Archbishop  of,    and 

Henry  of  Limburg,  236 

Trial  by  balance,  224 

Twelfhendeman,  35 

Twyhindeman,  35 

Ugo,  Marquis  of  Tuscany,  205 
Uncertainty  of  ordeal,  explana- 
tions of,  263 
Upstallesboom,  laws  of,  274,  376 
Upton,  Nicholas,  164 
Urpheda,  368 
Uta,  Queen  of  Germany,  31 
Utrecht,  torture  disused  in,  385 

Valenciennes,  duel  at,  in  1455,  165 
Valentin ian   III.,   protection  of 

slaves  by,  296 

Valerius  Maximus,  cases  of  tor- 
ture, 298 
Value  of  evidence  by  torture,       297 
Van  Arckel,  combat  of,  76 
Varieties  of  ordeal,                          196 
of  torture  used  in  Greece,      284 
in  Rome,                            299 


Vase  of  Soissons,  301 

Vehmgericht.  (See  Fehmgericht.) 
Venice,  use  of  torture  in,  345 

Vermandois,  nobles  of,  demand 

the  duel,  161 

Viescher,  August,  74 

Vigils,  torture  of,  366,  381,  383 

Villadiego,  directions  as  to  tor- 
ture, '     317 
Villeins,    inequality  of   combat 

for,  103 

ordeal  reserved  for,  260 

debarred  from  all  appeal,  336 
Villon  subjected  to  water  torture,  350 
Vincent,  St.,  his  martyrdom,  300 
Vladislas  II..  of  Hungary,  re- 
stricts the  duel,  169 
Voltaire  argues  against  torture,  388 
Vorogeia,  or  Russian  diviner,        229 

Wager  of  law,  24 

of  battle  (see  Battle  Ordeal). 
Waldemar  II.  of  Denmark,  laws 

of,  375 

Waldrada  and  Lothair,  199 

Warfare,  right  of  private,  15 

Water,  bitter,  ordeal  of,  180 

boiling,  ordeal  of,  196 

mode  of  administration,   196 

exorcisms  employed,         198 

its  universality,  200 

its  use  in  India,  201 

cold,  ordeal  of,  216 

mode  of  administering,    216 

explanation  of  it,  217 

introduced  by  Eugenius 

II.,  218 

forbidden  by   Louis-le- 

Debonnaire,  219 

it  flourishes  never- 
theless, 219 
generally  a  servile   or- 
deal, 220 
cases  of  its  employment,  221 
prolonged  use  in  witch- 
craft,                               222 
loss  of  weight  in  witches,  224 
ordered  for  witches  by 

Louis  Hutin,  225 

revived  in  16th  century,  226 
controversy  concerning 

it,  1583-'94,  226 

use   continued   in   17th 

century,  227 

forbidden  by  Paris  Par- 

lement,  227 

encouraged  by  James  I. 
of  England,  228 


l  N  D  i   \  • 


KIT 


Water,  cold,  ordeal  of — 

used  in  West  Prussia  till 

1745,  228 

cases  in  1815  and  1836,  229 
OOgnatt    practico    in 

Kussia,  229 

Water  torture,  349 

Weapons  of  champion  in  duel,  117 

choice  of,  in  duel,  117 

equality  of,  in  the  duel,  118 

Weight,  loss  of,  by  witches,  224 
Wenceslas  of  Bohemia  prohibits 

torture,  322 
William    the    Conqueror    intro- 
duces the  battle  ordeal,  83 
William  of  Ely,  53 
Wirtemburg,  torture  abolished, 

1806,  387 
Wisigothic  code,  its  superiority,  84 
Wisigoths,  their  laws,  308 
torture  allowed  for  slaves,  309 
and  for  freemen,  309 
under    careful    re- 
strictions, 310 
disregarded  in  practice,  311 
perpetuated  among 

Spaniards,  312 
Witchcraft,    legal   penalties    in- 
flicted on,  223 


Witchcraft- 
torture  indispensable  in,         370 
extent  of  persecution  for,        .';7.'i 
torture  used  in  England  for,  381 
atrocious  trials  for,  in  Scot- 
land, 383 
Witches  lose  their  weight,  224 
tortured  by  Ostrogoths,  308 
insensible  to  torture,                370 
Witnesses  of  defeated  party  pun- 
ished,                                86,  90 
liable  to  challenge,  88 
employed  as  champions,          120 
sometimes  liable  to  torture, 

290,  315,  316,  359 
no  torture  of,  among  Barba- 
rians, 304 
Women  and  children  admitted  as 

conjurators,  38 

Women  and  ecclesiastics  not  al- 
lowed to  testify,  89 
Women,  duel  between  men  and,    145 

Yves  of  Chartres.    (See  Ivo.) 

Zanger,  Johann,  his  treatise  on 


torture, 
Zoroaster,  legend  of, 


355 
181 


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